In re Martin C.

Filed 10/11/06 In re Martin C. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Referee. Reversed and remanded with directions.

D.C., the mother of Martin C., appeals the judgment terminating her parental rights under Welfare and Institutions Code section 366.26.^[1] D.C. contends the juvenile court erred by finding: (1) Martin was likely to be adopted; (2) the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A)) did not apply; and (3) the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) did not apply. Also, Martin's appellate counsel requests we take judicial notice of postjudgment developments concerning Martin's adoptability. Martin's appellate counsel and D.C.'s appellate counsel argue that if we take judicial notice of the requested material, we should allow the juvenile court to revisit its adoptability finding upon remand for defective ICWA notice.

The San Diego County Health and Human Services Agency (Agency) concedes, and we agree, there was noncompliance with ICWA. We otherwise find no error. We decline to take judicial notice of the postjudgment developments. Accordingly, we reverse with directions on the ICWA issue.

FACTUAL AND PROCEDURAL BACKGROUND

On May 24, 2004, Martin, then five years old, and his 11-year-old half-sister, L.G., were taken into protective custody after L.G. revealed that D.C. had recently disciplined her with a belt, hitting her on her back and legs. L.G also said D.C. had beaten her before and had kept her home from school until the bruises went away. Martin said he "gets a whooping on his legs." D.C. denied ever hitting her children with a belt or any object.

On May 27, Agency filed dependency petitions on behalf of Martin under section 300, subdivision (j), and on behalf of L.G. under section 300, subdivision (b), alleging they were at substantial risk of harm as a result of D.C. hitting L.G. with a belt.^[2]

At the detention hearing, D.C. said she was not aware of any eligibility under ICWA, but added her grandmother was Cherokee. D.C. provided her grandmother's married name. D.C. did not know the years of her grandmother's birth and death; however, D.C. supplied the month and day of her grandmother's birth and death. D.C. said her mother and her step-grandfather could supply further information about her grandmother. D.C., who was estranged from her mother and did not know her telephone number, gave the name and telephone number of a third relative who had D.C.'s mother telephone number. The court ordered Agency to notify the Cherokee tribes.

On June 17, Agency sent ICWA notice to the Bureau of Indian Affairs (BIA) with the information supplied by D.C. Agency said it was not able to contact the relative who had the telephone number of D.C.'s mother. D.C. told Agency that the relative was on vacation. On the notice form for Martin, the space for tribal affiliation was blank and the birth date for D.C.'s maternal grandmother was listed as "unknown."^[3]

On June 30, Agency reported it had sent notice to the BIA and to the Cherokee tribes. Agency provided copies of ICWA forms SOC 318 (Request for confirmation of Child's Status as Indian ) listing only L.G.'s name; the spaces for birthplace for family members was marked unknown. Agency filed handwritten certified mail receipts, which were not date-stamped and contained no postmark. Agency did not file return receipts verifying the tribes received the notice.

On August 2, D.C. submitted to the petition on the basis of the social worker's reports, and the court sustained the petition.

On August 10, Agency told the court that the United Keetoowah of Cherokee Indians and the Eastern Band of Cherokee Indians reported that Martin and L.G. were not eligible to register or enroll in their tribes.^[4] The BIA responded that it received insufficient notice to determine tribal heritage.

At the August 18 dispositional hearing, the court declared Martin a dependent of the court, removed him from D.C.'s custody, placed him in foster care, and ordered D.C. to comply with her case plan.

At a special hearing on August 31, the court found notice under ICWA was proper and ICWA did not apply.

On December 7, the social worker notified the court that D.C. was in jail on charges arising from the same acts against L.G. that were the basis of the dependency cases. Upon Agency's request, the court issued an order authorizing Martin to visit D.C. in Las Colinas Women's Detention Facility (Las Colinas). Subsequently, Martin began visiting D.C. at the facility.

Martin's foster mother reported that he was difficult to work with at times. Martin's teacher was concerned about his behavior; among other things, Martin could not be still in school, constantly made noise, had difficult focusing, talked a lot and jumped around while sitting on the rug. Martin's therapist reported that Martin had started to bite people.

In February 2005, the school counselor wrote the juvenile court about her concerns for Martin, who had turned six. The counselor noted Martin had extreme hyperactive and impulsive behaviors that limited his ability to learn and he exhibited "extreme dysfunction" at school. Further, Martin had been diagnosed with ADHD (attention deficit hyperactivity disorder) and needed medication. Subsequently, the social worker obtained a court order authorizing psychotropic medication for Martin.

Because she had previous felony convictions, D.C. was sentenced to four years in prison. Agency, which previously had recommended to the court that D.C. receive an additional six months of services, changed its recommendation and asked that services be terminated and a section 366.26 hearing be set. Agency noted that because of her prison sentence, D.C. would not be able to meet the statutory time limits for reunification with Martin. At the six-month review hearing on March 3, the court authorized six more months of services for D.C.

Over the next six months, Martin continued to have behavior problems, but there had been only one major incident since being administrated his medication. Martin was rummaging through another boy's backpack; when confronted, Martin stabbed the boy with a pencil. Martin was developmentally on target and had no problems with his motor skills. Martin was promoted to the first grade and was able to do some of his work with prompting from his teacher. Martin's therapist reported he had made progress, but still had difficulties. The therapist noted that Martin had adjusted to his placement, had formed a bond with his foster family and would benefit from continued therapy and treatment.

D.C. wrote a letter to the court stating she was taking vocational courses in prison and would be eligible for substance abuse classes next year. The substance abuse classes included parenting education and anger management. D.C. said she could be moving to a program that would allow Martin to live with her once she was paroled.

D.C. originally indicated she would contest Agency's recommendation that services be terminated at the 12-month review hearing. However, on September 20, D.C.'s attorney announced that she was submitting the matter on Agency's recommendation. Counsel noted D.C. could be paroled as early as January 2008 and acknowledged this was well beyond the 18-month date. The court terminated services and set a section 366.26 hearing.

Agency's adoption assessment report described Martin as adoptable because of his age and good health. Agency reported Martin's maternal great aunt and uncle in Maryland were interested in adopting him and had been approved for placement in an Interstate Compact on the Placement of Children (ICPC) evaluation. There also were three approved adoptive families who said they were willing to adopt a child with Martin's characteristics.

The report also noted that D.C. had been incarcerated during most of the dependency. D.C. had four visits with Martin at the Las Colinas between December 30, 2004, and February 17, 2005. D.C. acted appropriately at the visits; she was affectionate and caring as well as being attentive. Martin was affectionate toward D.C. and appeared very happy to be with her. The assessment social worker, who had not observed any of the visits but had reviewed the reports of the visits, opined (1) Martin and D.C. did not have a significant relationship, and (2) terminating D.C.'s parental rights would not severely impact Martin.

On March 16, 2006, Martin was placed with the great aunt and uncle in Maryland. The social worker reported Martin was doing well. The great aunt said Martin exhibited some acting-out behavior, but she was working with him.

At the contested section 366.26 hearing on April 28, social worker Jose Santana testified that Martin's behavior problems were something that a prospective adoptive family would have to look at, but they did not render Martin unadoptable. Santana, who had worked in the adoptions unit for 15 years, said when determining whether a child is adoptable, he considered the child's age, health and development, the child's behavior, and whether there was a beneficial parent-child relationship. Santana acknowledged that Martin and D.C. had positive visits, but said at that point Martin's need for a permanent home needed to be addressed.

D.C. testified that she had as much contact with Martin as she could. She wrote letters to Martin, but the previous foster parents would not accept her collect telephone calls. The maternal aunt accepted her telephone calls. Before D.C. was incarcerated, Martin had been in her care his entire life. D.C. and Martin were still very close. D.C. said Martin was an easy child to parent, and she did not believe he had any problems in school.

The court terminated D.C.'s parental rights and selected adoption as Martin's permanent plan. The court found Martin was adoptable, noting D.C. said he was a good child and it was not uncommon for a seven-year-old boy to have some problems with ADHD. The court acknowledged that D.C. had made attempts to maintain contact with Martin, but D.C., by her own actions, was responsible for her incarceration. Because D.C. would be incarcerated for two more years and there was someone willing to adopt Martin, the court said Martin deserved the permanency of adoption.

DISCUSSION

I.

Substantial Evidence Support Finding Martin Was Likely to Be Adopted

D.C. contends the juvenile court's finding that Martin was likely to be adopted was not supported by substantial evidence. The contention is without merit.

The court can terminate parental rights only if it determines the child is likely to be adopted. (§ 366.26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood of adoption within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. (In re David H. (1995) 33 Cal.App.4th 368, 379.) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, "[u]sually the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, 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 pp. 1649-1650; italics omitted.)

When reviewing a court's finding a minor is adoptable, we apply the substantial evidence test. (In re Josue G. (2003) 106 Cal.App.4th 725, 732.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we must uphold those findings. The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

Substantial evidence supported the court's finding that Martin was likely to be adopted. Martin was in excellent health and developmentally on target, but suffered from ADHD, and his behavior often was marked by poor impulse control with frequent classroom disruptions. However, after Martin was placed on medications to counteract his ADHD, his behavior improved. The social worker described him as sweet, outgoing, articulate and friendly. Martin's teacher said he was very smart and a sweet, loving boy who could accomplish anything he put his mind to.

The relative caregivers were aware of Martin's ADHD and were willing to adopt him. In addition, Agency had identified three approved prospective adoptive families who were willing to adopt a child with Martin's characteristics. (See In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154 [family's interest in adopting the child is some evidence that the known characteristics of that child, even if problematical, are not likely to dissuade the family].) Moreover, the social worker, who had 15 years of experience in the adoptions unit, opined that Martin was likely to be adopted.

D.C. attempts to undercut the court's adoptability finding by arguing that Martin's behavior problems persisted at least through August 2005, including fighting, running around the classroom, running in between parked cars, stealing from other foster children, stealing the foster mother's underwear and hiding it in the bathroom to smell it, and rummaging through another boy's backpack and stabbing the boy with a pencil when confronted. However, only one incident ¾ the backpack rummaging/pencil stabbing episode ¾ took place after Martin was on his medication.

D.C. also argues that the social worker's opinion that Martin was adoptable, by itself, is not sufficient to support an adoptability finding. However, there was more evidence supporting the court's finding that Martin was likely to be adopted than merely the social worker's opinion. A relative caregiver was willing to adopt Martin. There also was undisputed evidence that three prospective adoptive families were willing to adopt a child with Martin's characteristics.

Martin's appellate counsel asks us to take judicial notice of postjudgment developments in this case. We reject the request. (In re Zeth S., supra, 31 Cal.4th at pp. 399-400, 413 [error for Court of Appeal to receive and consider postjudgment evidence].) "[C]onsideration 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; see also § 366.26, subd.(i)(1).)

II.

Substantial Evidence Supported Finding that Beneficial Parent-Child Relationship Exception to Adoption Did Not Apply

D.C. contends the juvenile court erred by not applying the beneficial parent-child relationship exception to adoption (§ 366.26, subd. (c)(1)(A). The contention is without merit.

Adoption is the permanent plan preferred by the Legislature. (In re Derek W. (1999) 73 Cal.App.4th 823, 826.) At the selection and implementation hearing, the court must terminate parental rights if the child is likely to be adopted within a reasonable time unless a statutory exception applies. (§ 366.26, subd. (c)(1).) The parent bears the burden to establish by a preponderance of the evidence that an exception to the statutory preference for adoption applies. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; § 366.26, subd. (c)(1).)

The beneficial parent-child relationship exception is codified in section 366.26, subdivision (c)(1)(A), which provides that after the court finds the child is likely to be adopted, the court shall not terminate parental rights if it finds termination would be detrimental to the child because "[t]he parents . . . have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." The exception applies only if both prongs are met.

Our standard of review is the substantial evidence test. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) We determine if there is substantial evidence, contradicted or uncontradicted, to support the conclusions of the juvenile court, resolving all conflicts favorably to the prevailing party, and drawing all legitimate inferences to uphold the lower court's ruling. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.)

D.C. visited Martin as much as she was allowed until she was transferred to prison. After that, D.C. wrote letters to Martin; she did not have telephone contact with Martin because the foster parents would not accept her collect calls. However, after Martin was placed with the maternal great aunt, D.C. was able to and did telephone him. Agency acknowledges these facts and impliedly concedes that D.C. met the first prong of section 366.26, subdivision (c)(1)(A) ¾ namely, D.C. maintained regular contact with Martin.

However, to establish a beneficial parent-child relationship, D.C. also needed to show that Martin would benefit from continuing his relationship with D.C. To establish such a relationship, the parent must show more than frequent and loving contact, an emotional bond with the child, pleasant visits, or incidental benefit to the child. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) To overcome the statutory preference for adoption, the parent must prove he or she occupies a parental role in the child's life, resulting in a significant, positive emotional attachment of the child to the parent. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) "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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

In In re Autumn H., supra, 27 Cal.App.4th at page 575, we explained that to come within the beneficial parent-child relationship exception to adoption, a parent must show the "relationship 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." (Italics added.) The court must balance "the strength and quality of the . . . parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer." (Ibid.) The court's balancing test must be performed on a case-by-case basis, taking into account variables such as "[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 pp. 575-576.)

Further, the parent must show the benefit arises from a parental relationship rather than a caretaker or friendly visitor relationship. (See In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) We affirmed this balancing test, explaining the standard "reflects the legislative intent that adoption should be ordered unless exceptional circumstances exist." (In re Casey D. (1999) 70 Cal.App.4th 38, 51, italics added.)

Substantial evidence supported the court's finding that the parent-child beneficial relationship exception to adoption did not apply. Although D.C. had parented Martin for the first five years of his life and maintained a positive relationship with the child during the pendency of this proceeding, their relationship at the time of the section 366.26 hearing was not a beneficial parent-child relationship within the meaning of the statute. (§ 366.26, subd. (c)(1)(A).) By the time of the section 366.26 hearing, Martin had been in out-of-home care for one month shy of two years. Further, there was no possibility that D.C.'s relationship with Martin could become a beneficial parent-child relationship while D.C. remained in prison, which would be, at the minimum, an additional 19 months. Because of her imprisonment, first the foster parents and later the relative caregiver had assumed the parental role for Martin by providing him with a safe, stable and nurturing home.

D.C. did not meet her burden of showing her relationship with Martin was sufficiently strong that he would suffer detriment from its termination. Although Martin enjoyed the limited contact he had with D.C. while she was incarcerated, the loss of "frequent and loving" contact with a parent is insufficient to show detriment. (In re Beatrice M., supra, 29 Cal.App.4th at p. 1418.) D.C. also failed to show the benefits of continuing her relationship with Martin outweighed the well-being he would gain in a permanent adoptive home. D.C. no longer played a parental role in Martin's life. Martin needed a sense of permanence as well as "the sense of belonging" an adoptive family would provide. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) This was something D.C. could not offer Martin for at least 19 months.

D.C.'s reliance on In re Amber M. (2002) 103 Cal.App.4th 681 is misplaced as that case is readily distinguishable. In In re Amber M., supra, at pages 689-690, a psychologist who conducted a bonding study opined the mother and child shared a primary attachment and primary maternal relationship that would make termination of parental rights detrimental. Additionally, the child's therapist and the court-appointed special advocate believed the relationship should continue because the mother and child shared a strong bond. (Ibid.) D.C. did not present similar expert bonding evidence or expert evidence that severing her relationship with Martin would be detrimental to him.

III.

Notice Under ICWA Was Inadequate

D.C. contends the court erred by finding ICWA did not apply because Agency did not comply with the notice requirements of ICWA. D.C. is correct.

Legal Principles

In 1978, Congress enacted ICWA to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) ICWA allows a tribe to intervene in dependency proceedings because the law presumes it is in the child's best interests to retain tribal ties and heritage and that it is the tribe's interest to preserve future generations. (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.)

ICWA sets forth specific notice requirements:

"[W]here 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).)

If the identity of the tribe cannot be determined, notice must be given to the BIA. (25 U.S.C. § 1912(a); Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) The Indian tribe determines whether the child is an Indian child. (In re Desiree F., supra, 83 Cal.App.4th at p. 470.) " 'A tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.' [Citation.]" (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 255.)

ICWA notice requirements are strictly construed. (In re Karla C. ( 2003) 113 Cal.App.4th 166, 174.) The notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. (Id. at p. 175.) The notice must include: "if known, (1) the name, birthplace, and birth date of the Indian child; ( 2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child's parents, grandparents, great grandparents, and other identifying information; and ( 4) a copy of the dependency petition. (25 C.F.R. § 23.11(d)( 3) (2003); 59 Fed. Reg. 2248 (eff. Feb. 14, 1994).)" (Ibid.; italics omitted.)

To enable the juvenile court to review whether sufficient information was supplied, Agency must file with the court the ICWA notice, return receipts and responses received from the BIA and tribes. (In re Karla C., supra, 113 Cal.App.4th at pp. 175, 178-179.)

It is also essential for Agency to provide the Indian tribe with as much information as is known about the child's ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) In In re Louis S., we found the tribe could not conduct a meaningful search to determine the child's tribal heritage because Agency, among other errors, did not provide birthdates for the maternal grandmother or maternal great-grandmother. We noted the maternal grandmother's birth date was available because the children were in foster care with her. We also found fault with the omission of the maternal great-grandmother's full name and birth date because there was no evidence the social worker was unable to get this "critically important" information about the person with the alleged Indian heritage. (Ibid.) Thus, notice to the tribe must include available information about the child's maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates, place of birth and death, current and former addresses, tribal enrollment number, and other identifying information. (Id. at p. 630.)

A "social worker has 'a duty to inquire about and obtain, if possible, all of the information about a child's family history' required" under regulations promulgated to enforce ICWA. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.)

The notice requirements of ICWA are mandatory and cannot be waived by the parties. (In re Jennifer A. (2002) 103 Cal.App.4th 692, 707.)

Agency concedes the ICWA notices contained insufficient information to comply with the federal law. We agree.

Although D.C. could not provide the telephone number of her mother, the number appeared on Agency's worksheet, which accompanied the petition. Also, Agency gave up trying to contact the relative who had D.C.'s mother's telephone number after only two weeks even though D.C. said she was on vacation. D.C.'s mother could have supplied the maiden name of D.C.'s grandmother as well as her place of birth and the years of her birth and death. Agency failed in its duty to investigate and obtain all available information about the child's family history necessary for compliance with ICWA. (In re S.M., supra, 118 Cal.App.4th at p. 1116.) Moreover, Agency failed to include critical information in the ICWA notices. (In re Louis S., supra, 117 Cal.App.4th at pp. 630, 631.) Agency also did not comply with ICWA because it did not file with the court return receipts, properly filled out certified mail receipts and the response letter from the United Keetoowah of Cherokee Indians tribe. (In re Karla C., supra, 113 Cal.App.4th at pp. 175, 178-179.)

In light of our refusal to take judicial notice as requested by Martin's appellate counsel, there is no basis for us to depart from our normal practice of issuing a limited remand for ICWA purposes only. (See In re Francisco W. (2006) 139 Cal.App.4th 695.)

DISPOSITION

The judgment terminating parental rights is reversed and the case is remanded to the juvenile court with directions to order Agency to comply with the notice provisions of ICWA, the relevant case law interpreting ICWA and the views expressed in this opinion, and to file all required documentation with the juvenile court for the court's inspection. If, after proper notice a tribe claims Martin is an Indian child, the juvenile court shall proceed in conformity with all provisions of ICWA. If, on the other hand, no tribe claims that Martin is an Indian child, the judgment terminating parental rights shall be reinstated.

McCONNELL, P. J.

WE CONCUR:

NARES, J.

IRION, J.

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^[1] All statutory references are to the Welfare and Institutions Code unless otherwise specified

^[2] L.G. is not a subject of this appeal. She will not be discussed further unless relevant to this appeal.

^[3] However, the field worksheet that accompanied the dependency petition listed the maternal grandmother's telephone number and address.

^[4] The letter from the Eastern Band of Cherokee Indians stated that L.G. was not an Indian child; the letter did not mention Martin. The record on appeal does not contain a letter from the United Keetoowah of Cherokee Indians.