In re W.M.

Filed 10/17/07 In re W.M. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of San Bernardino County. Robert G. Fowler, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Reversed with directions.

Rene Judkiewicz, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Julie J. Surber, Deputy County Counsel, for Plaintiff and Respondent.

Andrea R. St. Julian, under appointment by the Court of Appeal, for Child 1.

Konrad S. Lee, under appointment by the Court of Appeal, for Child 2, Child 3, Child 4 and Child 5.

Danielle F. (hereafter mother) appeals from the trial courts order under Welfare and Institutions Code section 366.26^[1]terminating her parental rights to four of her five children.^[2] Mother contends that the beneficial relationship and the sibling relationship exceptions to parental rights termination apply in this case. In addition, mother challenges the sufficiency of the evidence to support the trial courts finding that the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) does not apply in this case. We agree with mothers ICWA claim and therefore will conditionally reverse the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

On September 11, 2004, San Bernardino County Department of Childrens Services (DCS) took custody of mothers four children after mother was arrested in the family home for possession of methamphetamine. Police officers found the drugs in mothers bedroom during a search that occurred after a woman reported that mother and a man had held the woman captive in the house because she owed mother money. The woman reported that she was beaten and sodomized by the man while mother held her so she could not escape.

DCS removed all four children from mothers custody and filed section 300 petitions with respect to each child. The petitions for the three younger children included allegations that mother failed to protect ( 300, subd. (b)), failed to provide support ( 300, subd. (g)) and abused a sibling ( 300, subd. (f)). When interviewed, six-year-old Child 1, the oldest of the four, said that mother had whipped him with a cord and had caused injuries to his ear, back, and thigh, and cut him with a large knife. Child 1 also had scratches on the side of his face and neck that he said mother caused by choking him because she was mad at him. The dependency petition filed on behalf of Child 1 included allegations of serious physical harm ( 300, subd. (a)), and serious emotional damage ( 300, subd. (c)), as well as allegations under subdivisions (b) and (g) of section 300. Mother was pregnant when she was arrested and gave birth to her fifth child while in custody, a month after her arrest. DCS also filed a section 300 petition for Child 5.

The combined jurisdiction and disposition hearing was continued several times and ultimately took place on January 20, 2005. In the interim, the children, whom DCS had placed in foster care, the three younger children (Child 2, Child 3, and Child 4) in the same foster home, Child 1 in a different foster home, and the newborn, Child 5, in a third foster home, visited with each other once or twice a week. According to pertinent parts of the social workers various reports prepared for the hearing, when Child 1 was interviewed at the Childrens Assessment Center, he said that mother whipped him and Child 2 and Child 3 with a belt and a cord. Child 2 refused to talk about how mother disciplined her, and Child 3 confirmed that mother had whipped her with a belt and a cord. Physical examinations of the children revealed that Child 1 had numerous scars consistent with physical abuse, and that Child 2 had hymenal trauma that was highly suggestive of sexual abuse. While Child 3 and Child 4 did not have obvious signs of physical abuse, the interviewer concluded that mother had subjected all four children to neglect and continual use of physical aggression.

Mother waived her rights and plead no contest to the allegations at the hearing. The trial court declared all five children to be dependents, ordered reunification services for mother, who by then had been released from custody, and supervised visitation with the children at least once a week.^[3]

By the time of the six-month review hearing originally scheduled for July 20, 2005, mother was pregnant with her sixth child. On June 15, 2005, mother moved to a sober living house for pregnant women, which was mothers first effort at completing the requirements of her reunification plan, although DCS had made services available to mother since the preceding October. As part of the sober living program, mother drug tested on June 15 and June 17. The results of both tests were positive for marijuana. In an interview on March 2, 2005, the father of the three youngest children reported to the social worker that mother had done methamphetamine that day and was not participating in any services either through DCS or parole. Although she was authorized to have weekly visits, mother attended only seven visits with the children between December 2004 and May 2005. Child 1, in the interim, had been diagnosed with attention deficit disorder and because his behavior was volatile and he was subject to severe temper tantrums, DCS placed him in a group home. From February to June 2005, the social worker received 94 incident reports on Child 1, the majority of which involved him physically attacking staff or other residents at the group home.

In an addendum report dated August 19, 2005, the social worker stated that mother had been terminated from the sober living home for various reasons, including that she was noncompliant with the program and very disruptive in class. The social worker also reported that Child 1s therapist had reported that he has been on a significant downward spiral, both in terms of his behaviors and his emotional state of mind since he started having regular contact with mother. Child 1 disclosed memories to his therapist of abuse that mother had inflicted on him.

Based on mothers near total failure to participate in services, the social worker recommended in an addendum report prepared for the six-month review hearing that the trial court terminate mothers reunification services and set a section 366.26 hearing. The social worker testified at the six-month review hearing on August 23, 2005, and stated among other things that mother failed to complete any aspect of the service plan. Mother also testified at the hearing and acknowledged that she had only started to complete the requirements of her plan in June, but that she had been kicked out of the program.^[4]

At the conclusion of the hearing, and in accordance with the social workers recommendation, the trial court terminated mothers reunification services and set a selection and implementation hearing for Child 3, Child 4, and Child 5, the three younger children. Because the social worker recommended six additional months of reunification services for the father of the two older children, the trial court also set a 12-month review hearing for Child 1 and Child 2.

After numerous continuances,^[5]the trial court held the selection and implementation hearing, originally set for December 22, 2005, on September 7, 2006. In the intervening months mother had violated her parole and in April 2006 was sentenced to state prison for two years. Also, the father of Child 1 and Child 2 had failed to maintain contact with the children and, as a result, the trial court terminated his reunification services and set a selection and implementation hearing for them. In her report for that hearing, the social worker recommended adoption as the permanent plan for all the children except Child 1, for whom the social worker recommended a planned permanent living arrangement. In the social workers view, Child 1 was not currently adoptable because of his ongoing behavioral issues which included severe temper tantrums and volatile behavior. The foster parents of the other children had expressed their respective desires to adopt the children for whom they had been providing care. Child 2, Child 3, and Child 4, in turn, all expressed the desire to remain with and be adopted by their caregivers. Although Child 5 was not old enough to express his preferences, he demonstrated a significant attachment to his foster parents and their children. Child 5 was four months old when he was placed with the family. According to the social worker, Child 5 called his foster parents mama and daddy and clearly preferred them to any other adults.

The social worker and mother each testified at the selection and implementation hearing. In addition to confirming the statements in her report, the social worker testified that Child 1 would continue to have visits with his siblings until the adoptions were completed. The social worker also stated that the adoptive parents of Child 2, Child 3, and Child 4 were very committed to Child 1 and hoped that someday he could be placed in their home with his siblings. The social worker expressed the hope that visits between Child 1 and his siblings would continue after the adoptions were complete. The social worker also stated that mother had two monthly visits with the children before she was sent to prison, both of which were normal, and mothers conduct was appropriate.

Mother testified in pertinent part that she had a bond with the children and that she visited them each month from August 2005 until she was taken into custody in March 2006. Mother expressed the view that the children had a bond with her as evidenced by the fact that the children would cry and say they did not want to leave at the end of their visits with mother. Mother admitted, however, that she had not regularly visited the children during the time she was authorized to have weekly visits.

At the conclusion of the hearing, the trial court found that Child 2, Child 3, Child 4, and Child 5 were adoptable, terminated mothers parental rights to those children, and ordered adoption as the permanent plans. The trial court found it unlikely that Child 1 would be adopted and ordered a planned permanent living arrangement as the permanent plan for him.

DISCUSSION

Mother contends that the trial court erred in terminating her parental rights to the four younger children because the exception under section 366.26, subdivision (c)(1)(A) based on a beneficial relationship with a parent applies in this case. Mother also contends that the sibling relationship exception to parental rights termination applies in this case. In a supplemental brief, mother asserts that DCS failed to comply with the requirements of ICWA and that as a result we must reverse the order. Although we agree with the ICWA claim, we will only conditionally reverse the judgment.

1.

BENEFICIAL PARENTAL RELATIONSHIP EXCEPTION

Section 366.26, subdivision (c)(1)(A) provides that, if the juvenile court finds that a dependent child is adoptable, it shall terminate parental rights, unless the court finds a compelling reason for determining that termination would be detrimental to the child, because (A) The parent[] . . . ha[s] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.

The so-called beneficial relationship exception requires much more than an incidental benefit to the child. Rather, it contemplates that the parent and the child will have developed such a significant, positive, and emotional attachment from the child to the parent that severance of the relationship would be detrimental to the child. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The parent must occupy a parental role with regard to the child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1420.) The burden is on a parent to establish at the selection and implementation hearing that the exception applies. (Cal. Rules of Court, rule 5.725(e)(3); In re Daisy D. (2006) 144 Cal.App.4th 287, 291.) On appeal, we affirm the juvenile courts findings if supported by substantial evidence. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

Mother failed to meet her burden in this case. The evidence recounted above shows that mother did not regularly visit the children. According to the social workers reports and the social workers testimony, from October 2004 to June 2005, when mother was entitled to weekly visits with the children, mother attended only seven visits. After the six-month review hearing in August 2005, mother was authorized to see the children once a month and missed visits in December around the holidays,^[6]although she did visit with the children in January and February 2006. Mother was sent to prison on the parole violation in April 2006. Consequently, her visits with the children ended at that time. Mother did not present evidence to show that she maintained contact with the children in ways other than by visiting, such as with phone calls or by mail. Under any view of the record, mother did not demonstrate that she had maintained regular visitation and contact with the children, the threshold requirement for application of the beneficial relationship exception to termination of parental rights. For that reason alone we reject mothers claim that the exception applies.

But even if mother had made the required showing, we nevertheless would conclude that she failed to demonstrate that the children would benefit from maintaining a relationship with mother. To the extent the record includes information about mothers relationship with the children before they were removed from her custody that information is negative and reveals, among other things, that mother physically abused Child 1.^[7] According to the interviewer at the Childrens Assessment Center, the three older children have experienced neglect and continual use of physical aggression from their mother. The evidence of mothers relationship with the children post removal consists of her interaction with them during visits. That evidence reveals that mother had pleasant visits with the children in which she talked with them, read with them, and played with them. Mother also held the two younger children in her lap and tickled them.

The evidence does not demonstrate that mother occupied a parental role in the lives of any of the children.^[8] At best, mother showed that her visits with the children were loving and pleasant, that the children apparently called her mom,^[9]that they were happy to be with her, and sad to leave her company. However, the significant relationship between parent and child that will support application of the beneficial relationship exception results from the adults attention to the childs needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship [typically] arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In re Casey D. (1999) 70 Cal.App.4th 38, 50, quoting In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Mother has not demonstrated that she had such a relationship with any of the children. Accordingly, the evidence is sufficient to support the trial courts finding that the beneficial parental relationship exception does not apply in this case.^[10]

2.

SIBLING RELATIONSHIP EXCEPTION

Mother next contends that termination of her parental rights would cause substantial interference with the childrens relationships with each other and therefore the exception set out in section 366.26, subdivision (c)(1)(E) applies in this case. That section, commonly cited as the sibling relationship exception, creates an exception to termination of parental rights if [t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(E).)

We are not persuaded that mother raised this issue in the trial court. Mothers only reference to the relationship between the children occurred at the selection and implementation hearing, when mother argued the significance of her relationship with the children. In that context mother referred to the fact that the five children, who all are close in age to each other, were placed in three separate homes, that, in and of itself, is detrimental to the children, and thats exactly whats going to happen and will stay forever if, in fact, the parental rights of Mother are terminated. The quoted phrase is mothers only reference to the childrens connection with each other. That reference does not satisfy mothers obligation to show that a significant sibling relationship existed between the children, the severance of which would be detrimental to any or all of the children.^[11] (See In re L.Y.L. (2002) 101 Cal.App.4th 942, 952.)

Moreover, mother cannot make the necessary showing, first, because three of the children will be adopted by the same family and therefore their relationships with each other will not be affected by termination of mothers parental rights. In addition, Child 5 has never lived with any of his siblings and the only contact between him and his siblings occurred during visits with each other or with mother. There are no common experiences or strong bonds between Child 5 and the other four siblings that will be severed or adversely affected if mothers parental rights are terminated. Child 1 is the only child whose sibling relationships will be affected by termination of mothers parental rights because he will be in a planned permanent living arrangement in order to address his emotional and physical needs. As set out above, the social worker and the prospective adoptive parents of Child 2, Child 3, and Child 4 were all committed to continued contact between the four older siblings. Although that commitment had not been reduced to writing because, at the time of the selection and implementation hearing, the adoptions had not been approved, the fact of the commitment nevertheless constitutes evidence to support the trial courts finding that termination of mothers parental rights will not sever significant sibling relationships. In other words, substantial evidence supports the trial courts finding that the sibling relationship exception does not apply in this case.

3.

ICWA

In a supplemental brief, mother challenges the sufficiency of the evidence to support the trial courts finding that ICWA does not apply in this case.^[12] We agree with mother that the evidence does not support that finding.

The pertinent facts and law are undisputed. Mother and William M., the father of the three youngest children, both claimed Indian ancestry at the jurisdiction and disposition hearing. DCS sent notices to various Indian tribes, including the Cherokee Nation from which both parents claimed to be descended.

The Cherokee Nation, after receiving the ICWA notice from DCS, asked for additional information about some of mothers ancestors. The record does not indicate that DCS provided the requested information. Instead, the social workers report to which the above noted letter is appended states that the children are not eligible for tribal membership. All subsequent reports state that ICWA does not apply. In view of the letter from the Cherokee Nation, that statement and the trial courts subsequent finding that ICWA does not apply are not supported by substantial evidence.

Mother cites additional errors and oversights in her supplemental brief, including failure to notify certain tribes, and failure to provide adequate information to the tribes notified. We will not recount all the purported defects. Instead, we will conditionally reverse the judgment and remand the matter for the limited purpose of allowing DCS to properly comply with ICWA notice requirements, and to reinstate the judgment if, after proper notification, none of the tribes intervene.

DISPOSITION

The judgment is reversed for the limited purpose of complying with ICWA notice requirements. On remand, mother is directed to provide DCS with all information available to her regarding her Indian ancestry, including the names of the tribes and the names of the ancestors from whom mother claims Indian ancestry. DCS is directed either to confirm that it has complied with the notice requirements with respect to each tribe identified by mother and previously identified by Jamarr C. and William M., or to provide the required notice. In addition, DCS is directed to provide the Cherokee Nation with the information requested in its letter of November 15, 2004, or to indicate in a pertinent report that such information is not available. If after receiving proper notice, an Indian tribe intervenes, the trial court shall proceed in accordance with ICWA. If none of the Indian tribes intervene after receiving proper notice, the judgment shall be reinstated.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ McKinster

J.

We concur:

/s/ Ramirez

P.J.

/s/ Richli

J.

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

^[2]To protect their identity, and because the initials of several of the children are the same, we identify the children by number, according to birth order. Child 1 is mothers oldest child, a son who was six years old at the time this dependency was initiated. Child 2 is a daughter, who was five years old, Child 3 is a daughter who was three years old, and Child 4 is a son who was 20 months old when this dependency was initiated. Child 5, born while mother was in jail, is a son who was removed from mothers custody at birth. J.C. is the presumed father of Child 1 and Child 2. William M. is the presumed father of Child 3, Child 4, and Child 5. The trial court ordered a permanent plan for Child 1 of long-term foster care, now referred to as a planned permanent living arrangement, and therefore did not terminate mothers parental rights.

^[3]Because mother had purportedly moved to Los Angeles County the trial court also ordered the matters transferred to that county. Los Angeles County transferred the matters back to San Bernardino County after determining that mother never actually moved.

^[4]Mother claimed that she was terminated from the program in retaliation because she had reported the counselor to the police for some inappropriate sexual things that the counselor was doing.

^[5]Much of the delay resulted from an unsuccessful effort at placing the three younger children with their paternal grandmother who had expressed a desire to adopt all five children. Ultimately, the grandmother could not be approved for placement because 30 years earlier, when the grandmother was a teenager, she had been convicted of a felony in Iowa.

^[6]The social worker used the word visits in her report which suggests mother would have more than the one visit per month authorized by the trial courts visitation order.

^[7]According to the Childrens Assessment Center, Child 1 reported that mother whipped him with a belt and a cord, and once cut his hand with a knife. Child 1 reported that mother also used the belt and cord to whip Child 2 and Child 3.

^[8]The record discloses that Child 5 was only briefly in mothers care and has lived with his current caregivers since he was four months old. As to him there is no question that mother did not occupy a parental role.

^[9]The social worker testified at the six-month review hearing that she was told the children either called their mother by her nickname, Chocolate, or they referred to her by that name.

^[10]Mother also claims that termination of parental rights will deprive the children of the benefit of their birth family which includes a strong positive relationship with their paternal grandmother. Contrary to mothers apparent view, there is no beneficial birth family exception to termination of parental rights.

^[11]Although Child 1 raises the issue and mother purports to join in his claims, we are not persuaded he has standing because he did not separately appeal. Moreover, even if he has standing, Child 1 did not raise the sibling relationship exception in the trial court and, instead, requested postadoption contact with his siblings.

^[12]Child 1 also raised the ICWA issue in his brief. Although we are not persuaded that he has standing to raise the claim because he did not separately appeal, the standing issue is moot since mother has raised the ICWA claim in her supplemental brief.