In re Tyson W.

Filed 4/11/06 In re Tyson W. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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. Affirmed in part; reversed in part with directions.

Trina B. appeals a judgment of the juvenile court terminating her parental rights to her minor children Tyson W., Taylor W. and Justice W. (collectively the minors) under Welfare and Institutions Code section 366.26.^[1] Trina challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. Robert A., Justice's father, seeks reversal of the judgment terminating his parental rights to Justice because of noncompliance with the notice provisions of the Indian Child Welfare Act (the ICWA) (25 U.S.C. § 1901 et seq.). Trina joins in this argument.

We conclude substantial evidence supports a finding that the beneficial parent-child relationship exception did not apply to preclude terminating Trina's parental rights. However, we further conclude the record does not contain sufficient evidence that proper notice was given under the ICWA as to Justice. Accordingly, we affirm the judgment as to Tyson and Taylor and reverse the judgment as to Justice for the limited purpose of ensuring compliance with the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

In August 2003 the San Diego County Health and Human Services Agency (Agency) filed petitions in the juvenile court under section 300, subdivision (b), alleging four-year-old Tyson, three-year-old Taylor and one-year-old Justice were exposed to domestic violence between Trina and her boyfriend Jaime B., and to drug use by Lemone W., the presumed father of Tyson and Taylor and the alleged father of Justice. At a detention hearing, the court found the ICWA did not apply.

At a jurisdiction and disposition hearing, the court sustained the allegations of the petitions and declared the minors dependents. The court removed the minors from Trina's custody, placed them in foster care and ordered reunification services for Trina. Paternity testing excluded Lemone as Justice's father and his name was stricken from her petition.

In its six-month review report, Agency noted Trina was complying with her case plan. Trina had unsupervised visits with Justice and overnight visits with Tyson and Taylor. The court continued the minors in out-of-home care and ordered six more months of services for Trina.

Agency added Robert A., as an alleged father, to Justice's petition. The court appointed counsel for Robert and ordered paternity testing. On a paternity inquiry form, Robert stated he had Cherokee heritage. He also filed an ICWA informational form stating he may be a Cherokee descendant. Based on the results of a paternity test, the court found Robert was Justice's biological father and entered a judgment of paternity. The court ordered no services for Robert after he did not participate in services previously offered.

Agency's 12-month review report stated Trina had not made progress with her case plan. She continued to expose the minors to the risk of domestic violence during visits and allowed unauthorized contact between the minors and Robert, who was using drugs and had a history of domestic violence. According to Trina's domestic violence counselor, Trina continued to minimize abuse in her relationships and did not have insight into issues of the minor's safety. A psychological examination showed Trina had personality traits that caused her to participate and remain in abusive relationships. Because of the risk to the minors' physical and emotional well-being, Trina's visits became supervised.

Trina had difficulty writing an atonement letter to the minors, as required by her domestic violence treatment program. She was unable to identify her role in the domestic violence dynamics with previous boyfriends and in her most recent relationship. She continued to show minimal understanding of how domestic violence affected her children. Trina's counselor was unsure Trina could provide a safe environment for herself and the minors.

Trina and Robert were arrested in November 2004 for possessing methamphetamine and marijuana. They both admitted recently using drugs. Methamphetamine was found in Trina's purse. Robert's 10-year-old son was present at the time.

Trina was advised to repeat the classes in her domestic violence treatment program because she had not learned how to change her circumstances. Trina visited the minors but made inappropriate statements to them, including promising they would have a new stepbrother and stepfather, a big house and other amenities. These statements were affecting the minors' emotional well-being. The court terminated Trina's services and set the matter for a section 366.26 selection and implementation hearing.

At a contested selection and implementation hearing, social worker Nicole Champagne testified Trina was having two-hour supervised visits with the minors one day a week and additional visits with Justice two days a week for two hours each visit. Based on observing at least 15 visits, Champagne concluded Trina did not have a beneficial parent-child relationship with the minors and she was more like an aunt than a parent to them. Although the minors enjoyed the snacks and toys Trina brought to visits, they did not look to Trina to meet their deeper needs. They looked to their caregivers for nurturing, consistency and permanence. The minors had no problems transitioning to their caregivers following visits with Trina. The caregivers for Tyson and Taylor reported the boys were anxious and sometimes aggressive immediately before and after visits with Trina.

Champagne determined adoption was in the minors' best interests and termination of parental rights would not be detrimental to them. Champagne explained her opinion was based in part on Trina's lack of progress on her case plan after almost 18 months of services. Trina's attempts to act like a parent to the minors were unsuccessful. She had difficulty directing them during visits and did not follow through with appropriate discipline. Instead, she spoke negatively to them, called them inappropriate names and used threats, behaviors Champagne believed were detrimental to them. Trina also had inappropriate conversations in the minors' presence.

The minors were attached to their caregivers and looked to them to meet their daily physical and emotional needs. The caregivers wanted to adopt the minors and were committed to providing them with permanence.

Champagne read the bonding study report prepared by Raymond Murphy, Ph.D., and acknowledged Dr. Murphy believed there was a strong relationship, approaching a primary bond, between the minors and Trina. Champagne agreed the bond approached a primary bond, but did not agree it was a strong one. She based her opinion on the fact the minors had been out of Trina's care for nearly two years and had looked to other caregivers to meet their needs during that time.

Although Tyson and Taylor said they wanted to live with Trina, they did not ask for her between visits. Justice occasionally asked about Trina. The minors experienced some distress and grief when they were first removed from Trina's custody, but in Champagne's opinion, they would experience no great upheaval were parental rights terminated. Champagne believed the benefits of a loving and stable home in which the minors can thrive outweighed any detriment they would experience from having parental ties severed. She stated Trina did not provide a home where the minors would thrive. Trina was loving toward the minors, met their needs during visits, and the minors loved her. Nevertheless, Champagne recommended adoption as the appropriate permanent plan for the minors.

Dr. Murphy testified he conducted a bonding study of Trina and the minors, during which he observed them for three hours. He reported there was a "strong relationship between mother and children which appears to approach a primary bond." He defined a primary bond as a "very strong bond with various characteristics that indicate that the child and the adult or care provider have most likely had a strong and enduring relationship early in the developmental phase." According to Dr. Murphy, Trina and the minors did not have a primary bond. He noted, however, "[t]he children clearly enjoy their contact with their mother and participate eagerly in activities, suggesting that these children, if separated from their mother, would experience some degree of emotional distress and grieving."

After considering the evidence and hearing argument of counsel, the court found the minors were adoptable and none of the statutory exceptions to adoption applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoptive placement.

DISCUSSION

I

Trina challenges the sufficiency of the evidence to support the court's finding that the beneficial parent-child relationship of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights to the minors. She asserts the evidence showed: (1) she had a parental role in the minors' lives, resulting in significant, positive emotional attachments; and (2) terminating her parental rights would greatly harm the minors.

A

We review the judgment for substantial evidence. (In re Autumn H. ( 1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is substantial evidence supporting a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) The parent 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; In re Geoffrey G. (1979) 98 Cal.App.3d 412, 420.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) If the court finds a child cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated, it must select adoption as the permanent plan unless it finds termination of parental rights would be detrimental to the child under one of five specified exceptions. (§ 366.26, subd. (c)(1)(A)-(E); In re Erik P. (2002) 104 Cal.App.4th 395, 401; In re Derek W. (1999) 73 Cal.App.4th 823, 826.)

Section 366.26, subdivision (c)(1)(A) is an exception to the adoption preference if termination of parental rights 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." We have interpreted the phrase "benefit from continuing the relationship" to refer to a "parent-child" relationship 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. 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., supra, 27 Cal.App.4th at p. 575; accord In re Zachary G. (1999) 77 Cal.App.4th 799, 811.) "In other words, if an adoptable child will not suffer great detriment by terminating parental rights, the court must select adoption as the permanent plan." (In re Dakota H. (2005) 132 Cal.App.4th 212, 229.)

To meet the burden of proof for this statutory exception, the parent must show more than frequent and loving contact, an emotional bond with the child or pleasant visits. (In re Derek W., supra, 73 Cal.App.4th at p. 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Although day-to-day contact is not required, it is typical in a parent-child relationship. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) The parent must show he or she occupies a parental role in the child's life, resulting in a significant, positive, emotional attachment from child to parent. (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

Here, Trina regularly visited the minors but she did not meet her burden of showing there was a beneficial parent-child relationship sufficient to apply the exception of section 366.26, subdivision (c)(1)(A). Social worker Champagne agreed with Dr. Murphy that the minors did not have a primary bond with Trina. After observing many hours of visits between Trina and the minors, Champagne concluded Trina's relationship with the minors was more that of an aunt than a parent. Although Trina brought food, toys and gifts to visits, and she was loving and affectionate, she did not provide structure, consistency and discipline characteristic of a parent-child relationship. The minors loved Trina and were always happy to see her, but they looked to their caregivers to meet their deeper needs and transitioned well following visits with Trina. Tyson and Taylor did not ask about Trina between visits. The court, who heard the testimony and observed the demeanor of witnesses, was entitled to find the social worker's opinion credible and give great weight to her assessment and testimony. We cannot reweigh the evidence or substitute our judgment for that of the trial court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.)

Further, Trina did not show her relationship with the minors was sufficiently beneficial to outweigh the benefits of adoption. Champagne testified that in her assessment, adoption was in the minors' best interests. At the time of the selection and implementation hearing, the minors had been out of Trina's care for more than two years. The evidence showed Tyson (now almost seven years old), Taylor (now almost six years old), and Justice (now almost four years old) need a permanent, stable and nurturing environment that provides structure and consistency and allows them to develop and maintain their emotional security. Despite Trina's preference for a permanent plan other than adoption for the minors, the Legislature has decreed that a permanent plan other than adoption "is not in the best interests of children who cannot be returned to their parents. These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them." (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1419.)

Although the evidence showed the minors may grieve and feel a sense of loss if they no longer have contact with Trina, there was no showing they would be "greatly harmed." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; In re Dakota H., supra, 132 Cal.App.4th at p. 229.) To require a parent show only "some, rather than great, harm at this stage of the proceedings would defeat the purpose of dependency law . . . ." (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.)

Trina relies on this court's opinion in In re Jerome D. (2000) 84 Cal.App.4th 1200 to support her argument that she had a beneficial parent-child relationship with the minors sufficient to overcome the preference for adoption. In In re Jerome D., we held there was no clear and convincing evidence the minor was adoptable. (Id. at pp. 1205-1206.) We further held the evidence was insufficient to support a finding that the mother did not meet her burden of showing a beneficial parent-child relationship. (Id. at p. 1207.) The nine-year-old minor had lived with his mother for the first six and one-half years of his life. For at least two months, he had been having unsupervised overnight visits in her home. There was no other mother figure in the minor's life and he wanted to continue the relationship with his mother. Expert testimony^[2] showed the positive effect of interaction between the minor and his mother. (In re Jerome D., supra, 84 Cal.App.4th at pp. 1207-1208.) Further, there was no evidence the minor's placement with his stepfather would have been jeopardized if the mother's parental rights remained intact. (Id. at p. 1208.)

Unlike the facts in Jerome D., the facts here do not warrant reversing the judgment. The juvenile court was required to, and did, weigh the strength and quality of the parent-child relationship, and the detriment involved in terminating it, against the potential benefit of an adoptive family for these minors based on their particular needs. The evidence before the court supported a finding the preference for adoption had not been overcome. (See In re Alexis M. (1997) 54 Cal.App.4th 848, 852 [decision must be viewed in context of specific facts of case].) We apply a deferential standard of review and conclude substantial evidence supports the court's finding that the exception of section 366.26, subdivision (c)(1)(A) did not preclude terminating parental rights. (In re Cliffton B. (2000) 81 Cal.App.4th 415, 424-425.)

II

Robert contends termination of parental rights as to Justice must be reversed because notice was not sent to the Cherokee tribes as required by the ICWA. Trina joins in this argument. Agency acknowledges a limited remand in Justice's case is necessary for compliance with the ICWA.

A

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Karla C. (2003) 113 Cal.App.4th 166, 173-174.) The ICWA defines an Indian child as any unmarried person under age 18 and either: (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)

If a court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, a duty arises under the ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene or obtain jurisdiction over the proceedings by transfer to the tribal court.^[3] (25 U.S.C. § 1912(a); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941; In re Kahlen W., supra, 233 Cal.App.3d at p. 1421.) " 'Of course, the tribe's right to assert jurisdiction over the proceeding or to intervene in it is meaningless if the tribe has no notice that the action is pending.' [Citation.] 'Notice ensures the tribe will be afforded the opportunity to assert its rights under the [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.' [Citation.]" (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.) The tribe determines whether the child is an Indian child within the meaning of the ICWA, and its determination is conclusive. (Id. at p. 255.)

After Indian heritage is known, the record must contain evidence the ICWA notice requirements are satisfied. "[N]otice must include the names of the child's ancestors and other identifying information, if known, and be sent registered mail, return receipt requested." (In re Brooke C. (2005) 127 Cal.App.4th 377, 384; In re Louis S. (2004) 117 Cal.App.4th 622, 632-633.) Because "the failure to give proper notice of a dependency proceeding to a tribe with which the dependent child may be affiliated forecloses participation by the tribe, notice requirements are strictly construed." (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) When proper notice under the ICWA is not given, the court's order is voidable. (25 U.S.C. § 1914; In re Karla C., supra, 113 Cal.App.4th at p. 174.)

B

When Robert was identified as Justice's alleged father, he informed Agency and the court of his Cherokee heritage. After the court entered a judgment of paternity, it made no findings under the ICWA, and did not order Agency to provide notice to the Cherokee tribes. Nothing in the record shows Robert or his relatives were interviewed or that proper forms were completed and sent to the Cherokee tribes. Because there is no evidence of reasonable inquiry or notice as required by the ICWA, the judgment terminating Robert's and Trina's parental rights to Justice must be reversed. (In re Karla C., supra, 113 Cal.App.4th at pp. 178-179.)

DISPOSITION

The judgment terminating parental rights as to Tyson and Taylor is affirmed. The judgment terminating parental rights as to Justice is reversed and the juvenile court is directed to comply with the notice provisions of the ICWA. If, after proper notice and inquiry, a tribe does not intervene, the court shall reinstate the judgment. If a tribe intervenes, the court is ordered to conduct a new section 366.26 selection and implementation hearing in accordance with the ICWA. (See In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112; In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1452; In re Jonathon S. (2005) 129 Cal.App.4th 334, 343.)

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

O'ROURKE, J.

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^[1] Statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] The bonding study in Jerome D. was performed by Dr. Murphy, the same psychologist who evaluated the bond between Trina and the minors.

^[3] If the tribe's identity is unknown, notice must be given to the Bureau of Indian Affairs as agent for the Secretary of the Interior. (25 U.S.C. § 1912(a).) The Secretary of the Interior then has the burden of identifying and providing notice to the proper tribe. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1422.)