In re P.J.

Filed 3/1/07 In re P.J. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from the order of the Superior Court of Los Angeles County. Zeke D. Zeidler, Judge. Affirmed.

William R. Gorenfeld, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and O. Raquel Ramirez, Deputy County Counsel, for Plaintiff and Respondent.

Willard J. appeals from (1) the trial courts order setting a permanent planning hearing under Welfare and Institutions Code section 366.26 ( 366.26) and (2) its refusal to order visitation with his three-year-old daughter, P.J. We affirm.

FACTS AND PROCEEDINGS

P.J. was born in January 2004 having been exposed in utero to cocaine. P.J.s father, appellant Willard J., knew P.J.s mother was using drugs while she was pregnant, but did not try to stop her because of his own use. After P.J.s birth, the Department of Children and Family Services filed a petition under Welfare and Institutions Code section 300 alleging Willards and the mothers drug abuse made them incapable of properly caring for P.J.

At the detention hearing on the petition, P.J.s mother told the court of possible Native American ancestry in both her and appellants families. The court ordered the department to investigate her claims. The department discussed P.J.s possible tribal affiliations with her maternal grandparents and appellant. The department thereafter sent under the Indian Child Welfare Act (ICWA) (25 USC  1901 et seq.) notice of P.J.s involvement in dependency proceedings to the Bureau of Indian Affairs, the Blackfeet Tribal Business Council, and the Poarch Band of Creek Indians.

The pretrial resolution conference hearing was in March 2004. At the hearing, appellant told the court there was possible Cherokee heritage in his family. Consequently, the court ordered the department to send ICWA notices to the three federally recognized Cherokee tribes. The court also ordered the department to send an additional notice to another federally recognized Creek tribe that P.J.s mother had identified. The court then continued the hearing to April 15, 2004, to give the department time to serve the additional ICWA notices, and, in the meantime, ordered the department to provide appellant with four hours of monitored visitation each week with P.J.

On April 2, 2004, the department mailed ICWA notices to the tribes newly identified at the pretrial conference: the Muscogee (Creek) Nation of Oklahoma; the Cherokee Nation of Oklahoma; the United Keetoowah Band of Cherokee; and the Eastern Band of Cherokee Indians. Each notice contained the same typographical error, stating a hearing was set in P.J.s case for April 2, 2004, the day the department sent the notices; in fact, the correct date was April 15. When the departments clerical error was discovered, the court continued the April 15 hearing to May 7 to give the tribes time to respond to the notices.

Before the May 7 hearing, the Eastern Band of Cherokee Indians, and from the first wave of notices the Blackfeet tribe and Poarch Band of Creek Indians, told the department P.J. was not eligible for enrollment in their tribes. The record contains no evidence that the other three tribes responded to the ICWA notices. At the May 7 hearing, the court found the departments service of ICWA notices was proper, and that P.J. was not an Indian child. The court sustained the petition against appellant and P.J.s mother. It ordered family reunification services for appellant, including monitored visits with P.J. The court also ordered appellant to complete drug rehabilitation and parent education programs.

Appellant enrolled in drug and parenting programs, where he made great progress, and in September 2004, he began visiting P.J. By the 12-month review hearing in March 2005, appellant had completed his drug and parenting classes, and had maintained regular weekly visitation with P.J. Unfortunately, however, he lacked adequate housing for P.J. because he lived in a homeless shelter that did not allow children. The court ordered continued reunification services for appellant, and terminated reunification services for mother, who is not part of this appeal.

Beginning in early summer 2005, appellants conduct changed. He did not maintain a regular visiting schedule with P.J. and lost contact with the department for two months. He continued to live in a homeless shelter that did not accept children, even though the department had given him low-income housing referrals. At the 18-month review hearing in July 2005, the court found appellant was not complying with his case plan. The court therefore terminated his family reunification services.

Meanwhile, P.J. had been living with a foster parent since birth, but the foster parent did not want to adopt her. Expressions of interest in adoption came, however, from P.J.s maternal Aunt Felicia, who lived in Bakersfield. The department therefore placed P.J. with her Aunt Felicia.[1] By early 2006, however, Aunt Felicia decided against adoption.

The court set the hearing for selection of a permanent plan for March 2006. ( 366.26.) By that time, a second maternal aunt who lived in Georgia had expressed willingness to be P.J.s guardian, although she did not want to adopt her. At the hearing, appellant admitted he had not visited P.J. in six months, blaming his inability to find transportation to Aunt Felicias home in Bakersfield. Aunt Felicia had told the department, however, that she did not want appellant to come to her home because he had a drug problem. She instead wanted him to meet her and P.J. at a Bakersfield courthouse or police station. (Notwithstanding Aunt Felicias claims about appellants drug problem, the homeless shelter where appellant lived reported he was successfully participating in the shelters recovery program.)

The court stated it was inclined to terminate appellants and mothers parental rights, but could not because of defective service to mother. The court therefore continued the hearing on termination of parental rights to July 2006. The court refused to order visitation for appellant and ordered him not to have any contact with P.J. unless she were placed in the home of one of his relatives. The court explained, appellant has not seen P.J. in six months. Shes two years old. Were not in reunification services. . . . Im inclined to order the department to immediately replace to a prospective adoptive home . . . .

A few days later, paternal grandmother Eula who lived in Louisiana expressed interest in adopting P.J. The maternal aunt in Georgia, who had not wanted to adopt P.J., indicated her willingness to defer to the grandmothers offer of adoption. The court thus ordered an Interstate Compact on the Placement of Children investigation of the grandmothers suitability for adopting P.J. The state of Louisiana scuttled the prospective adoption, however, by refusing to approve it because state policy prohibited guardianships for people older than 70 the grandmother was 73.[2]

In July 2006, the maternal aunt in Georgia stepped into the void created by Louisianas refusal to approve P.J.s adoption, and stated she was willing to adopt P.J. if the grandmother could not. The court accordingly continued the July permanent planning hearing to October 2006 to allow the department to complete an interstate compact placement report on the aunt. The court refused, however, to revise its order denying appellant visitation with P.J. It reiterated its reasoning from March that appellant had failed to establish a relationship with P.J., and it was now too late to start to try. This appeal followed.

DISCUSSION

1. Sufficient Notice Under Indian Child Welfare Act

Before a court may remove a child from an Indian household, Native American tribes from which the child might possibly claim descent must receive at least 10 days notice of any dependency proceeding contemplating the childs placement in a non-Native American home. (25 U.S.C.  1903, 1912, subd. (a); In re Jennifer A. (2002) 103 Cal.App.4th 692, 704; In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475; former Cal. Rules of Court, rule 1439, subd. (h), since renumbered to rule 5.664, subd. (h).) On April 2, 2004, the department mailed notices to three Cherokee tribes of the upcoming pretrial hearing set for April 15, 2004. Those notices went to the Muscogee (Creek) Nation of Oklahoma, the Cherokee Nation of Oklahoma, and the United Keetoowah Band of Cherokee.[3] Unfortunately, a typographical error on the notices incorrectly stated the hearing was set for the day of service, April 2, 2004. Moreover, the tribes did not receive the notices until April 12 or 13, in violation of the 10 days notice rule.

Appellant contends the tribes failure to receive accurate and timely notice of the erstwhile April hearing deprived the court of jurisdiction over P.J. He also contends that the precise details of the departments typographical error compounded its mistake because the tribes may have figured it was too late to even bother responding by the time they received notice in mid-April of a hearing ostensibly set for April 2.

We are unpersuaded because the departments mistakes were harmless. (In re Brooke C. (2005) 127 Cal.App.4th 377, 385 [harmless error analysis applies to departments flawed ICWA notices that substantially comply with the statute]; In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413 [same]; accord In re Gerardo A. (2004) 119 Cal.App.4th 988, 996 [failure to provide tribe with correct biographical and family history information about child is prejudicial error].) First, to give the tribes more than 10 days to respond after they received the notices in mid-April, the court continued the April 15 hearing to May 7, 2004. Second, federal law permits tribes to intervene at any stage of a dependency proceeding to assert their heritage rights. (25 USC  1911, subd. (c); In re Desiree F., supra, 83 Cal.App.4th at p. 472.) Hence, any of the tribes could have intervened if they had wanted to claim P.J.s eligibility for tribal membership. Given their right to intervene at any time, coupled with the indication on the notices that the dependency proceedings had been underway for only three months, we find it highly unlikely that the tribes were misled into not responding in the mistaken belief that intervention would have been pointless.[4]

2. No Visitation Order Required

After terminating appellants family reunification services, the court refused to reinstate visitation for appellant with P.J. Appellant observes that visitation is ordinarily essential to reunification, and without visitation a parent-child relationship will wither, if not die. (In re Brittany S. (1993) 17 Cal.App.4th 1399, 1407.) He furthermore notes that dependency courts ordinarily permit a parent to visit a child while the childs permanent placement is pending, even if the court has terminated reunification services. (In re Luke L. (1996) 44 Cal.App.4th 670, 679; e.g., Welf. & Inst. Code,  366.21, subd. (h).) He contends the court therefore erred in not reinstating visitation.

Appellants contention is unavailing. A court may halt visitation that is detrimental to the child, a conclusion the court reached here. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1504; Welf. & Inst. Code,  366.21, subd. (h).) By the time of the initial permanent planning hearing in March 2006, appellant had not visited P.J. in more than six months. Stating it could not see how good can come from renewing visits after appellants long absence from P.J.s life, the courts comment is best understood as indicating it believed the then almost two-and-a-half year old child had little, if any, bond with appellant. Because P.J. was likely to be adopted, the court apparently concluded appellants trying to build a relationship that might not last after adoption would hurt her well-being.

Appellant contends that even if the court believed visitation would be detrimental, we may not draw such an inference because the court did not expressly state its finding on the record. In support, he cites this divisions decision in In re Gladys L. (2006) 141 Cal.App.4th 845. There this division held it could not infer a finding of parental unfitness of a non-offending parent where the department did not allege unfitness and the record contained no such evidence. (Id. at p. 848.) Appellants reliance on In re Gladys L. is inapt because the record here contained evidence that reinstating visitation would be detrimental to P.J.

Appellants final contention in support of visitation is also unavailing. He notes that without visitation he is unlikely to trigger a statutory exception for termination of parental rights. The exception he has in mind arises when an ongoing parental relationship exists between a parent and child. (Welf. & Inst. Code,  366.26, subd. (c)(1)(A).) His reliance on the exception is misplaced because it exists so as not to tear asunder an ongoing relationship. It is not a vehicle to justify visitation hoping to belatedly create a relationship that did not then exist. The kind of parent-child bond the court may rely on to avoid termination of parental rights under the exception provided in section 366.26, subdivision (c)(1)(A) does not arise in the short period between the termination of services and the section 366.26 hearing. (In re Richard C. (1998) 68 Cal.App.4th 1191, 1196.) In re Richard C.s observation applies with equal force at this late stage of proceedings involving now three-year-old P.J. The statutory exception cannot be used as a backdoor to visitation.

DISPOSITION

The orders setting a permanent planning hearing and denying visitation are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J. BOLAND, J.

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Analysis and review provided by La Mesa Property line attorney.

[1] Appellant contends the court sanctioned the department $250 for its tardy completion of the home study report on Aunt Felicia. In support, he cites a minute order so stating. The reporters transcript states, however, that the court instead sanctioned the department for giving improper notice of the 366.26 hearing and that the sanction amount was $150.

[2] Appellant states in a footnote in his opening brief that the department should have contested Louisianas policy as unlawful age discrimination. In his reply brief, he denies he was suggesting the department sue Louisiana, and describes the footnote as merely a passing reference that the department should have pointed out to Louisiana the error of its ways.

[3] The department also mailed a notice to the Eastern Band of Cherokee Indians but appellant does not challenge the adequacy of that notice because the tribe informed the department that P.J. was not eligible for enrollment in its membership.

[4] Appellant also contends the court acted prematurely in finding P.J. was not of Native American heritage because the court made that determination before the tribes had at least 60 days to respond to the notices. Appellant concedes in his reply brief, however, that the 60-day rule did not apply in 2004, the year the court issued its finding.