Filed 6/29/17 In re S.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 S.R., a Person Coming Under the Juvenile Court Law.


ORANGE COUNTY SOCIAL SERVICES AGENCY,

Respondent,

v.

J.P.,

Appellant.


G054281

(Super. Ct. No. DP026461-001)

O P I N I O N

Appeal from a postjudgment order of the Superior Court of Orange County, Dennis Keough, Judge. Affirmed.
Jack A. Love, under appointment by the Court of Appeal, for Defendant and Appellant.
Leon J. Page, County Counsel, Karen L. Christensen and Joyce Riley, Deputy County Counsel.
Mother appeals from an order terminating her parental rights. She contends the court erred in finding her child, S.R., does not come under the Indian Child Welfare Act (ICWA). In particular, she argues the social worker performed an inadequate investigation resulting in incomplete notices to the relevant tribes. She also contends the evidence compelled a finding that the parent-child-benefit exception applied and that, as a result, her parental rights should not have been terminated. We affirm.

FACTS

In August 2015 the Orange County Social Services Agency (SSA) obtained a custody warrant to remove S.R. from his parents based on allegations of abuse and neglect. The application was based on a report from a different minor (the reporting party) who claimed she babysat S.R., who was two years old, for two weeks at a time, and had been doing so for the past year. The reporting party claimed the parents were homeless methamphetamine users who pay the reporting party in marijuana. The reporting party noticed a scar near S.R.’s eye and went to ask the parents about it. The parents were too high to respond, but someone else with the parents claimed to have hit S.R. This was not the first time the reporting party had noticed marks or bruises. S.R. was detained at Orangewood Children and Family Center.
SSA filed a petition under Welfare & Institutions Code section 300, subdivision (b), alleging the parents failed to adequately supervise S.R., failed to provide adequate food, clothing, shelter or medical treatment, and were unable to regularly care for the child due to substance abuse. In particular, the petition alleged both parents admitted to being homeless, they both abuse methamphetamine, they both have extensive criminal records, and they leave S.R. with a babysitter for days at time. The report further alleged mother had a prior dependency case related to two of S.R.’s half-siblings as a result of substance abuse, leaving the children unattended, and domestic violence. The result of that case was the maternal grandmother became the half-siblings’ guardian.
Mother stated she is 50 percent Cherokee, but not a member of a tribe. At the detention hearing, the court found ICWA may apply and ordered SSA to investigate any possible American Indian heritage and to provide notice to appropriate tribes. The court also ordered S.R. detained and authorized a minimum of six hours of visitation per week for the mother.
In its September 2015 report prior to the jurisdictional hearing, SSA recommended sustaining the petition, declaring dependency, and ordering reunification services for mother and father. S.R. had been placed with a nonrelated extended family member, the mother of the reporting party.
An ICWA social worker had interviewed mother on two occasions to obtain information related to her claim of having Cherokee ancestry. Mother was not specific about which of her parents had Cherokee ancestry. The report stated, “No further family information is available to mother in regards to her biological parents.” The social worker interviewed mother’s adoptive mother, who, in looking through “the paperwork from the adoption,” found “nowhere in the paperwork does it state that the child [mother] had possible Cherokee Indian ancestry through the biological family.” The report also stated, “SSA has spoken to the child’s family in regards to their American Indian ancestry. SSA has been provided with all information that the child’s family were able to or willing to provide at this time.” According to the report, the social worker documented the information she received in the “‘Notice of Child Custody Proceeding for Indian Child’” ICWA-030 form. The form was sent by certified mail to the Secretary of the Interior, the Bureau of Indian Affairs, and three Cherokee Indian tribes. The ICWA-030 form, for unexplained reasons, never became part of the record in this case.
Mother’s visitation got off to a rough start. The monitor of the first visit noted mother “appear[ed] to be out of it and [was] not making sense and seem[ed] to be staring off.” The social worker encouraged mother to read a book to S.R. but she was unable to finish one page and appeared to be tired. As the visit closed, S.R. started crying. Mother was a no-show for her second visit. Four subsequent visits were at the foster parents’ home. At the first visit, mother was “fiddling” with items in her backpack, which included scissors and a screwdriver, and the foster mother had to instruct mother not to use unsafe items around S.R. Mother appeared tired. At various times mother said she did not want to chase the child around on a playground. Mother also failed to appear for the appointment to have a drug patch applied to her skin.
At the jurisdictional hearing, the court, with minor modifications, found the allegations of the petition to be true and declared S.R. a dependent. It approved a case plan for mother that included drug testing and counseling.
The court also found appropriate ICWA notices were provided and that ICWA does not apply. The record contains responses from all three Cherokee tribes. The United Keetoowah Band of Cherokee Indians and the Eastern Band of Cherokee Indians provided response letters stating, based on the information provided to them, S.R. is neither a member nor eligible to become a member of the tribe.
The response from Cherokee Nation was somewhat more specific. First, it listed the information that had been provided to it: the names and dates of birth of S.R., father, and mother; and the names of the paternal grandmother and great grandmother. The Cherokee Nation’s response confirmed that none of the named individuals were current members of the tribe. However, “[b]ecause ‘ENROLLED TRIBAL MEMBER’ and ‘ELIGIBLE FOR ENROLLMENT’ are different, a conclusive finding of ‘eligible for enrollment’ requires the full names, to include maiden names, and dates of birth for the direct biological lineage linking the child to an enrolled member of the tribe. It is impossible for Cherokee Nation to confirm or deny a claim of ‘eligible for enrollment’ without this information.” The Cherokee Nation did not request additional information, but provided contact information to send additional information “if you wish.”
In anticipation of the six month review hearing, SSA filed a report recommending termination of reunification services and scheduling of a selection and implementation hearing pursuant to Welfare and Institutions Code section 366.26 (.26 hearing). According to the report, mother continued to be homeless and without income. It described mother’s compliance with her case plan as “minimal.” She did not undergo any of the required drug tests. She did not consistently participate in any substance abuse counseling, though she did start a substance abuse program in February 2016 (which was almost five months into the six month review period). Mother signed a referral for individual and parenting counseling, but never attended.
Mother was generally consistent with her visitation. There was some “concern regarding the quality of the mother’s visits as she has a difficult time setting limits.” However, “[t]he child is happy to see her at visitation.” And on one occasion S.R. began crying when mother ended the visitation early.
The matter was set for a contested six-month review hearing. In a supplemental report just prior to the hearing, SSA reported mother had been discharged from her substance abuse treatment program due to excessive absences. And she still had not drug tested. Mother continued to visit consistently. On three occasions, S.R. began to cry when mother left.
Mother did not testify at the six-month review hearing, and, in fact, departed midway through the hearing. The court admitted SSA’s report and addenda into evidence. The court terminated reunification services and set a .26 hearing.
In its report prior to the .26 hearing, SSA noted that S.R.’s foster parents expressed an interest in adoption and that S.R. had been doing well and thriving in the prospective adoptive parents’ home. Mother continued visitation and on another occasion S.R. cried when mother left. SSA recommended termination of parental rights and adoption.
At the .26 hearing the court accepted SSA’s reports into evidence, and mother’s counsel waived cross-examination of the social worker. Mother did not testify, but she authorized her counsel to make the following statement: “On mother’s behalf, she is submitting today. She understands that [S.R.] is being adopted by the current caretakers. She does love [S.R.] very much, has visited with [S.R.] consistently throughout this case, but does understand that [S.R.] deserves to have a permanent, stable home and housing environment and is hopeful that [S.R.’s] caretakers will continue to include her in [S.R.’s] life.” The court terminated parental rights and ordered S.R. placed for adoption. Mother timely appealed.

DISCUSSION

There Was No Error in Finding ICWA Does Not Apply
Mother first contends the court erred in finding ICWA does not apply. As mother recognizes, we review the court’s finding for substantial evidence. (In re Christian P. (2012) 208 Cal.App.4th 437, 451.)
This appeal is complicated by the fact that the court apparently did not have before it the ICWA-030 notices sent to the tribes. However, we can ascertain that notices were sent by the following evidence: an SSA report described sending the notices; the record contains return receipts supporting the SSA report; and most tellingly, the tribes responded. We can also ascertain what information was provided because the Cherokee Nation response listed the names and dates of birth that were the subject of their search. The crux of mother’s complaint is: neither the names nor dates of birth of her biological parents were listed. The issue, therefore, is whether substantial evidence supported the court’s conclusion that SSA performed an adequate inquiry.
SSA had an “affirmative and continuing duty to inquire whether a child” subject to a jurisdictional petition “is or may be an Indian child . . . . ” (§ 224.3, subd. (a).) “If the court, social worker, or probation officer knows or has reason to know that an Indian child is involved, the social worker or probation officer is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2 . . . .” (Id., subd. (c).) That information includes, “All names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” (§ 224.2, subd. (a)(5)(C).)
The inquiry here consisted of two phone conversations with mother and one phone conversation with mother’s adoptive mother. Mother did not know whether her Indian ancestry came through her biological mother or father. The report stated, “No further family information is available to mother in regards to her biological parents.” Later, SSA would document that mother did not know her biological parents’ names, though she claimed to have a document with that information, which she apparently never produced. Mother’s adoptive mother had adoption “paperwork,” though it is unclear what exactly that entailed. She claimed the paperwork had no indication of Indian ancestry. The social worker summarized her inquiry, stating, “SSA has spoken to the child’s family in regards to their American Indian ancestry. SSA has been provided with all information that the child’s family were able to or willing to provide at this time.”
We conclude substantial evidence supports the conclusion that SSA made an adequate inquiry. We find In re C.Y. (2012) 208 Cal.App.4th 34 instructive. There, the mother indicated she had American Indian ancestry, but could provide no specifics. “She explained that she had been adopted and had lost the document that had indicated her biological parents’ lineage. As she recalled, the document had listed her biological parents’ and grandparents’ names and nationalities, and American Indian was one of them. The court asked [the] mother’s adoptive father, who was present in court, if he knew the names of the tribes and, although he could confirm that the adoption paperwork indicated mother had some Indian ancestry, he did not know with which tribes she was affiliated, nor did he know of anyone who might have that information.” (Id. at p. 38, fn. omitted.) The social worker sent out a notice to the tribes that did not contain much information about the minor’s grandparents. (Ibid.) [The] mother argued on appeal that the social worker should have investigated her adoption records. The court disagreed: The mother “having then misplaced the information provided to her about her biological lineage, contends the burden was on the social worker to obtain that information, and more, through investigation into her sealed and unsealed adoption records. Presumably, [the] mother would have [the Sacramento County Department of Health and Human Services (DHHS)] uncover, not only possible tribal affiliations, but her biological parents’ and grandparents’ names, birth dates and other personal information, so that information could be provided in ICWA notices. Such actions go far beyond what is reasonable or appropriate. DHHS must inquire as to possible Indian ancestry and act on any information it receives, but it has no duty to conduct an extensive independent investigation for information.” (Id. at p. 41.)
Similarly, here, SSA made inquiries of the appropriate parties: mother and her adoptive mother. Mother had no knowledge of her biological parents. And a reasonable inference from the record is that mother’s adoptive mother likewise had no information. Mother claimed she was 50 percent Cherokee through either her biological mother or father. The social worker expressly asked mother about that, and it stands to reason she made a similar inquiry of the adoptive mother. Moreover, the social worker reported on a conversation with the adoptive mother about the adoption papers, and that inquiry would have been for no reason other than inquiring about mother’s biological parents. The social worker expressly stated she had been “provided with all information that the child’s family were able to or willing to provide at this time,” and that such information was documented in the ICWA-030 form. From these circumstances we infer the social worker asked the adoptive mother about mother’s biological parents, but the adoptive mother was either unwilling or unable to provide identifying information.
In urging us to reverse, mother relies on In re S.M. (2004) 118 Cal.App.4th 1108. There, the father claimed American Indian ancestry through his grandmother. (Id. at p. 1113.) The social worker sent notice to the three Cherokee tribes, two of which responded that, based on the information provided, S.R. was not an Indian child. Cherokee Nation, however, requested more information. (Id. at p. 1114.) In particular, the notice did not contain information about the grandmother (i.e., the person through whom the father claimed American Indian ancestry), who was alive and able to be interviewed, but was not. (Id. at 1116.) The court concluded the initial notice was inadequate: “Notice is meaningless if no information or insufficient information is presented to the tribe.” (Ibid.) Subsequently, the social worker sent a more thorough notice, but the court held it too was inadequate because it did not contain all required information about the grandparents, such as aliases, birthplaces, and current or former addresses. “The social worker did not say this information is unavailable. The social worker was required to investigate whether this information was available [citation], or report no family member knew the information required by” federal regulations. (Id. at p. 1117.)
In re S.M., supra, 118 Cal.App.4th 1108 is distinguishable. Unlike the initial inquiry there, here the social worker spoke with the people most likely to have information about mother’s biological parents. Moreover, although the social worker did not expressly say identifying information for mother’s biological parents was unavailable, she did say she had received all available information and included it on the ICWA-030 form, which is adequate.
As a final note, we recognize the record here is not optimal. If we were reviewing this case as trial court judges, we may well have been inclined to instruct the social worker to better document her inquiry. On appeal, however, we apply the deferential substantial evidence standard, pursuant to which we draw all reasonable inferences from the evidence to support the trial court’s findings. For the reasons stated above, we conclude a reasonable chain of inferences supports the conclusion that SSA made an adequate inquiry.

There Was No Error in Terminating Parental Rights
Next, mother contends the court erred by terminating her parental rights because the evidence compelled the court to find the parent-child-benefit exception applies. We disagree.
At a .26 hearing, where reunification services have been terminated, “the court shall terminate parental rights unless . . . the following applies:” (§ 366.26, subd. (c)(1).) “(B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (Id., subd. (c)(1)(B)(i).)
For the first time on appeal, mother contends this exception applies. However, her failure to raise this exception in the trial court forfeited her claim. “The application of any of the exceptions enumerated in section 366.26, subdivision (c)(1) depends entirely on a detailed analysis of the relevant facts by the juvenile court. [Citations.] If a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court’s determination is supported by substantial evidence. [Citation.] Allowing [mother] to raise the exception for the first time on appeal would be inconsistent with this court’s role of reviewing orders terminating parental rights for the sufficiency of the evidence. Therefore, [mother] has waived his right to raise the exception.” (In re Erik P. (2002) 104 Cal.App.4th 395, 403.) Here, mother did not argue for this exception below and thus forfeited the claim.
Even if the contention had not been forfeited, moreover, we would find no grounds for reversal. There is little doubt that mother visited S.R. consistently, so we focus on the child-benefit prong of the analysis.
“In the context of the dependency scheme prescribed by the Legislature, we interpret the ‘benefit from continuing the [parent/child] relationship’ exception to mean 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. In other words, the 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.” (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
“To meet the burden of proving the section 366.26, subdivision (c)(1)(B)(i) exception the parent must show more than frequent and loving contact, an emotional bond with the child, or pleasant visits — the parent must show that he or she occupies a parental role in the life of the child.” (In re I.W. (2009) 180 Cal.App.4th 1517, 1527.) “‘While friendships are important, a child needs at least one parent. Where a biological parent . . . is incapable of functioning in that role, the child should be given every opportunity to bond with an individual who will assume the role of a parent.’” (In re Jasmin D. (2000) 78 Cal.App.4th 1339, 1350.)
“[W]here the issue on appeal turns on a failure of proof at trial, the question for a reviewing court becomes whether the evidence compels a finding in favor of the appellant as a matter of law. [Citations.] Specifically, the question becomes whether the appellant’s evidence was (1) ‘uncontradicted and unimpeached’ and (2) ‘of such a character and weight as to leave no room for a judicial determination that it was insufficient to support a finding.’” (In re I.W., supra, 180 Cal.App.4th at p. 1528.)
Here, the only evidence mother relies on is that S.R. was excited to see her when she arrived at visitations and called her “mama.” This evidence is a far cry from the sort of evidence required to compel a court to apply the parent-child-benefit exception, particularly where the evidence showed S.R. was thriving in his prospective adoptive home. There was no error.

DISPOSITION

The postjudgment order is affirmed.




IKOLA, J.

WE CONCUR:



FYBEL, ACTING P. J.



THOMPSON, J.