In re Stephen C.

Filed 10/5/06 In re Stephen C. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

APPEAL from an order of the Superior Court of Los Angeles County.

Debra L. Losnick, Commissioner. Reversed and remanded with directions.

Ernesto P. Rey, under appointment by the Court of Appeal, for Defendant and Appellant, Amanda C.

Christopher R. Booth, under appointment by the Court of Appeal, for Defendant and Appellant, Stephen C.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, Jerry M. Custis, Deputy County Counsel, for Plaintiff and Respondent.

Amanda and Stephen Jr. (Mother and Father or appellants) appeal from the termination of their parental rights over their son Stephen III (Stephen). Appellants argue the juvenile court failed to comply with the Indian Child Welfare Act (ICWA). We conditionally reverse the juvenile court’s order to ensure full compliance with the ICWA. Mother’s additional argument that she established a beneficial relationship with Stephen within the meaning of Welfare and Institutions Code section 366.26, subdivision (c)(1)(A) lacks merit.[1]

FACTUAL AND PROCEDURAL BACKGROUND

Stephen was removed from Mother’s custody in February 2005 when he was three years old. It was later determined that Mother’s alcohol use prevented her from adequately protecting Stephen and her history of illicit drug use placed him at risk of physical harm. In February 2005, Mother’s home was found to be in a “chaotic, filthy and unsafe condition.” Stephen was “found wearing dirty clothing and smelled of urine.” The court also found true the allegation that Father had a history of drug use rendering him incapable of providing for Stephen and placing Stephen at risk. Father was incarcerated throughout the proceedings. Two of Stephen’s half siblings had been removed from Mother’s custody.

In February 2005, Mother was given monitored visitation rights. In May 2005, the Department of Children and Family Services (DCFS) reported that Mother had not visited Stephen. In October 2005, DCFS reported that in the last six months, Mother made seven appointments to visit Stephen, but she missed each appointment.

In December 2005, Mother filed a section 388 petition stating that she was following orders and wanted Stephen back. At that time, DCFS reported that Mother had started visiting Stephen. Mother supported her section 388 petition with certificates indicating she completed a parenting skills class and 60 days in a drug/alcohol program. The petition was denied.

In February 2006, Mother and Father’s parental rights were terminated. The court found Stephen to be adoptable, and a paternal aunt had expressed an intent to adopt Stephen. Mother and Father appeal from the order terminating parental rights.

DISCUSSION

I. Indian Child Welfare Act (ICWA)

A. Factual Background

Mother initially informed the court that Stephen had no Indian heritage. Subsequently the paternal aunt informed the court that her grandfather had Choctaw Indian heritage but was not a registered tribe member. The paternal aunt provided his name, his wife’s name and Father’s parents’ names.

Notice was sent to the Jena Band of Choctaw Indians, the Mississippi Band of Choctaw Indians, the Choctaw Nation of Oklahoma, and the Bureau of Indian Affairs (BIA). The notice listed (1) Mother’s name, address, birthday and location of birth as California; (2) Father’s name, address, birthday, and location of birth as California; Father states that his address, which was in prison at the time, was not complete; (3) The name of the maternal grandparents and paternal grandparents, and paternal great grandparents were listed. No addresses, birthdates or locations of birth were listed for them.

The Mississippi Band and the Jena Band of Choctaw Indians indicated that Mother, Father and Stephen were not members. The Choctaw Nation of Oklahoma responded as follows: “We have researched our records with the information you provided us and we were unable to establish Indian heritage. . . . We will be glad to assist in further research if more information becomes available. Please note that all records are pulled by maiden names and date of birth, therefore, the lack of this information may hinder the process.”

The trial court found the ICWA to be inapplicable.

B. Legal Discussion

The ICWA allows an Indian tribe to intervene in state court dependency proceedings. (In re Louis S. (2004) 117 Cal.App.4th 622, 628.) In order to decide whether to intervene, the tribe must have notice of the proceedings. (Ibid.) DCFS has the burden “to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if a tribe is unknown, to the BIA.” (Id. at p. 630.) The notice should include “the name, birthdate, and birthplace of the Indian child; his or her tribal affiliation; a copy of the dependency petition; the petitioner’s name; a statement of the right to the tribe to intervene in the proceeding; and information about the Indian child’s biological mother, biological father, maternal and paternal grandparents and great-grandparent or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; current and former addresses; tribal enrollment numbers, and/or other identifying information.” (Ibid.)

Father argues that the notice was insufficient because while it listed all of the names, it failed to include the grandparents and great-grandparents birthdays, birthplaces, and current or former addresses. Father also states that the Department did not include his complete address in prison and listed his birthplace only as California. Mother similarly argues that the notice lacked required information.

Appellants’ argument that DCFS had a duty to investigate is persuasive. The duty to inquire about Stephen’s status as an Indian child “mandated, at a minimum, that [the social worker] make some inquiry regarding the additional information required to be included in the ICWA notice.” (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) There is no evidence that DCFS asked anyone for the information necessary to provide notice to the tribes. The Choctaw Nation of Oklahoma expressly indicated that without the birthdates and maiden names it could not adequately research Stephen’s status. The notice “must contain enough information to be meaningful.” (In re Francisco W. (2006) 139 Cal.App.4th 695, 703.) Although the failure to give Father’s complete address in prison is not as important as the birthdates and maiden names, when reissuing notice DCFS should take care to ensure the notice is accurate and as complete as possible following inquiry.

Contrary to Father’s argument, a conditional reversal is appropriate where the sole error on appeal is the failure to comply with the ICWA requirements. (In re Francisco W., supra, 139 Cal.App.4th at p. 704.) “This approach allows the juvenile court to regain jurisdiction over the dependent child and determine the one remaining issue. The parties already have litigated all other issues at the section 366.26 hearing, and it is not necessary to have a complete retrial.” (Id. at p. 705.) [2]

II. Section 366.26 subdivision (c)(1)(A)

At the section 366.26 hearing, Mother argued that the court should not order adoption because section 366.26, subdivision (c)(1)(A) required the court to select a different permanent plan. That section allows a court to forego adoption where the “parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).) To apply the section 366.26, subdivision (c)(1)(A) exception, the benefit from continuing contact with Mother must outweigh the well being that Stephen would gain in a permanent home. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)

Mother testified to the following: (1) She visited Stephen every other Saturday since he was placed with his paternal aunt; (2) Stephen recognizes her and calls her “mommy”; (3) she plays with him and helps him when he has problems at school; and (4) Stephen tells her that he loves her.

The juvenile court found: “[M]other has had less than consistent visits until recently, and then those visits have only been every other week with some missed here or there, as mother indicated, and all monitored. The court cannot make the finding . . . that the benefit of the relationship so far outweighs the child’s right to permanency.”

Substantial evidence supports the trial court’s finding that the exception in section 366.26, subdivision (c)(1)(A) does not apply. (See In re Dakota H. (2005) 132 Cal.App.4th 212, 228 [review of the trial court’s finding is for substantial evidence].) While Mother belatedly began to visit Stephen, that does not show that she occupied a parental role in his life. Mother provided no evidence that her relationship with Stephen was significantly beneficial to outweigh the benefits of adoption. Assuming Mother showed frequent and loving contact with Stephen, that is insufficient to establish the requirements of section 366.26, subdivision (c)(1)(A). (In re Beatrice M., supra, 29 Cal. App.4th at p. 1419.) Mother did not provide any evidence that the strength of her relationship with Stephen outweighed the sense of belonging he would receive from a stable home. (In re Dakota H., supra, at p. 229.) As in this case, “if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanency plan.” (Ibid.)

Mother also objects to the court’s statement that her certificate for the completing of parenting and completion of a drug and alcohol program were not relevant to the issues at the section 366.26 hearing. The court’s conclusion was correct. The only issue at the section 366.26 hearing was the appropriate permanent plan for Stephen. Mother’s evidence of completing classes was not relevant to the determination of whether she “maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(A).)

DISPOSITION

The order terminating parental rights is vacated and the matter is remanded to the juvenile court. The juvenile court is directed to order DCFS to make proper inquiry of Father and his family members to comply with the requirements of the ICWA and California Rules of Court, rule 1439. If no additional information is available, the court is directed to reinstate its order.

If after inquiry, additional information is available, the court is directed to order DCFS to notice the tribes and the BIA. If it is determined that Stephen is an Indian child within the meaning of the ICWA, the court is ordered to conduct a new section 366.26 hearing, one that complies with the requirements of the ICWA. If no response is received from the tribes, or if it is determined that Stephen is not an Indian child within the meaning of the ICWA, the trial court shall reinstate its order terminating parental rights.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COOPER, P. J.

We concur:

RUBIN, J.

FLIER, J.

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[1] All further statutory citations are to this Code.

[2] Father assumes that the ICWA applies and argues that the court failed to comply with other requirements of that act. While Father has shown that notice was insufficient, he has not shown that Stephen is an Indian child, triggering the other requirements of the ICWA. If after proper notice a tribe intervenes, the juvenile court must conduct a new section 366.26 hearing that complies with the ICWA requirements. In addition, if Stephen is an Indian child, the tribe may “petition any court . . . to invalidate . . . [a foster care placement or termination of parental rights] upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.” (25 U.S.C.A. § 1914.)