Filed 2/26/18 In re A.E. CA3
NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
THIRD APPELLATE DISTRICT
(Yolo)
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In re A.E., a Person Coming Under the Juvenile Court Law. C084468


YOLO COUNTY HEALTH AND HUMAN SERVICES AGENCY,

Plaintiff and Respondent,

v.

K.P.,

Defendant and Appellant.

(Super. Ct. No. JVSQ15137)


Appellant K.P., mother of the minor, appeals from the juvenile court’s orders terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) She contends the juvenile court erred by failing to balance the proper factors and find she established the requirements for the beneficial parental relationship exception to adoption. She also contends the Yolo County Health and Human Services Agency (Agency) failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Finding merit only in mother’s ICWA claim, we reverse and remand for further proceedings to comply with the ICWA.
I. BACKGROUND
The 21-month-old minor came to the attention of the Agency in March 2015, after mother and her live-in boyfriend were arrested. Law enforcement found methamphetamine in the kitchen, marijuana in the bottom drawer in a bedroom and needles throughout the house. The marijuana and needles were accessible to the minor. The minor tested positive for methamphetamine after being removed from the home. As amended, the section 300 petition filed on behalf of the minor contained factual allegations centered around mother and father’s substance abuse, mother’s exposure of the minor to drugs, and father’s loss of parental rights to the minor’s sibling. The juvenile court found the allegations true. Family reunification services were ordered at the June 2015 disposition hearing.
Throughout most of the reunification period, mother visited the minor three hours per week and the visits were positive. Mother was loving, nurturing, and attentive to the minor’s needs. Visits were briefly expanded to six hours per week on October 20, 2015, but reduced back to three hours per week in December 2015, after mother failed to engage in substance abuse treatment, produced positive drug tests, and was suspected of being under the influence at some of her visits. Mother and father failed to reunify with the minor and reunification services were terminated in September 2016. Beginning in November 2016, mother’s visitation was reduced from three hours per week to three hours every other week.
The section 366.26 hearing, originally scheduled for January 26, 2017, was continued to allow for mother to obtain a bonding study and file a section 388 petition for modification. Mother filed a section 388 petition seeking additional reunification services on February 9, 2017. After several more continuances, the juvenile court held the combined section 388 and contested section 366.26 hearing on April 7, 2017.
The juvenile court conducted the section 388 petition hearing first, receiving into evidence the Agency’s section 366.26 report for the limited purpose of the facts contained in the report (subject to cross-examination), the “entire file,” mother’s testimony, the social worker’s testimony, Dr. Donald R. Siggins’ written bonding study, and Siggins’ testimony.
Mother testified she had been clean from methamphetamine since February 9, 2016—her longest period of sobriety. She had used marijuana since age 18, methamphetamine since age 19, and also suffered from posttraumatic stress disorder (PTSD), anxiety, and depression. Mother had a history of being in and out of treatment programs—having completed two and failed to complete six. Most recently, she had graduated from Progress House (residential treatment) and had been participating in the CommuniCare Pathways to Recovery dual-diagnosis program (outpatient treatment) since December 2016 to address both substance abuse and mental health. The current program provided five and a half hours a week of treatment. She was not participating in 12-step meetings due to conflicts with her job schedule (which consisted of 25 hours a week). In mother’s view, the minor’s best interests would be served by returning the minor to mother’s care, after which mother would maintain contact with the foster parents.
The minor was almost four years old and had been residing with her foster parents for just over two years. The social worker reported that the minor was healthy, happy, developmentally on target, and thriving. The minor appeared to have a close, “positive, loving relationship” with her caretakers, and called them “mommy” and “daddy.” The visitation monitor indicated that visits with mother went very well and the minor had been seen jumping out of the car and running to mother at the beginning of visitation time. The minor did not, however, have any difficulty transitioning to and from visits with mother, did not have problems leaving mother at the end of visits, and did not ask about mother prior to, or after, visits. The foster parents were committed to adopting her and a preliminary assessment of their suitability uncovered no impediments. The foster parents were also open to ongoing contact between the minor, her younger half sibling,[ ] and possibly to her “extended family,” as long as it benefitted the minor’s emotional well-being.
Siggins stated that his assessment was based on the visitation reports, the case file, and a two-hour observation of mother and the minor. He did not interview the prospective adoptive parents or the social worker, and he did not observe interactions between the minor and the prospective adoptive parents. Siggins opined that termination of parental rights would cause detriment to the minor, resulting from the “flow [of] various losses” she has, and would suffer, including the comfort of her original home and the loss of her father, which she had already suffered, and the relationship with her mother and her relatives that she would later suffer. The minor would have to accommodate the knowledge that she had another mother and that she has a little brother. Siggins had indicated, in his written report, that “given the loving support of her foster parents, the child’s loss of her mother may[ ]be emotionally upsetting and uncomfortable, but her suffering may[ ]be buffered enough to avoid detriment.” Siggins explained during his testimony that what he meant by that statement is that “the child won’t need to be in therapy for two years to deal with it given the loving response of two parents that she’s bonded to.” The minor’s primary attachment bond was made with mother, but it was in the process of transferring to the caregivers, who had been acting as her parents. Siggins also opined that removing the minor from her caretakers would cause detriment, stating that the minor “would suffer a loss and a trauma, and it would have to be mitigated through the services that could be provided for the child and through the love and care of the mother and possibly through some gradual program of removal.” Either way, the minor would suffer some trauma. He believed the best result would be to leave the minor with her current caretakers but maintain some sort of an ongoing relationship with mother and the half sibling.
The juvenile court denied mother’s section 388 petition for modification, concluding mother had not shown changed circumstances or that modification was in the minor’s best interests. It found mother’s continuation in recovery “hopeful” but still early and tenuous, considering mother’s past recovery efforts. It also found the mother/child bond was in the process of being transferred to the caregiver, that minor’s relationship with the caregivers was well-established, and that the relationship would help the minor accommodate the past and future losses.
The juvenile court then proceeded with the section 366.26 hearing. At the Agency’s request, and with no objection from mother, the court admitted the entire section 366.26 report into evidence and agreed to consider the evidence presented at the section 388 hearing. Other than some brief, additional cross-examination of the social worker, no other evidence was presented. Thereafter, counsel for the Agency argued that the minor was adoptable and had been in her concurrent placement since her removal. Counsel argued that “[t]he issue raised in Dr. Siggins’ evaluation regarding the severing [of] the relationship with the mother would be detrimental. The standard is whether or not that detriment would outweigh the benefit of adoption, and in this case [counsel did] not believe it would.” Counsel argued that the foster parents would be able to provide the minor with the necessary assistance to process the trauma or loss of her relationship with mother and that the benefits of permanency far outweighed the potential loss the minor would feel from termination of parental rights.
Minor’s counsel agreed with the Agency and argued that any detriment the minor would suffer from losing a relationship with mother or her biological family “has to be weighed against the benefit of adoption and permanency for this little girl.” Counsel argued that “Dr. Siggins’ [sic] opined severing a relationship with her mother can be ameliorated with the care of and understanding of the foster parents,” so the best long-term plan, and what was in her best interest, was for the court to terminate parental rights and free the minor for adoption.
Mother’s counsel argued in favor of guardianship, arguing it is “as permanent as adoption” and offered sufficient permanency for the minor, especially since there was still a possibility mother could reunify with the minor’s half sibling.
The juvenile court stated that it had “considered all the evidence . . . including what the Court heard and discussed with regards to the [section] 388 hearing,” found the minor adoptable, and terminated parental rights. It encouraged the foster parents to consider establishing some kind of a relationship between the minor and mother, as long as mother stays clean and sober, but the juvenile court had acknowledged earlier that it was not something the court could order.
II. DISCUSSION
A. Beneficial Parental Relationship Exception
Mother contends the juvenile court erred by failing to balance the proper factors and find she established the requirements for the beneficial parental relationship exception to adoption. We disagree.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several “ ‘possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. [Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, italics omitted.)
There are only limited circumstances which permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) One such circumstance is when “[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” (§ 366.26, subd. (c)(1)(B)(i).)
To prove that the beneficial parental relationship exception applies, the parent must show there is a significant, positive emotional attachment between the parent and child. (In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419.) And even if there is such a bond, the parent must prove that the parental 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 re S.B. (2008) 164 Cal.App.4th 289, 297, quoting In re Autumn H. (1994) 27 Cal.App.4th 567, 575 (Autumn H.); accord, In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1345 (Jasmine D.).) “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.” (Autumn H., supra, at p. 575.) On the other hand, “[w]hen the benefits from a stable and permanent home provided by adoption outweigh the benefits from a continued parent/child relationship, the court should order adoption.” (Jasmine D., supra, at p. 1350; see Autumn H., supra, at p. 575.)
“Because a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child’s needs, it is only in an extraordinary case that preservation of the parent’s rights will prevail over the Legislature’s preference for adoptive placement.” (Jasmine D., supra, 78 Cal.App.4th at p. 1350.) “ ‘Adoption is the Legislature’s first choice because it gives the child the best chance at [a full] emotional commitment from a responsible caretaker.’ ” (In re Celine R. (2003) 31 Cal.4th 45, 53, quoting Jasmine D., supra, at p. 1348.) The beneficial parental relationship exception is an exception to the general rule that the court must choose adoption where possible, and it “ ‘must be considered in view of the legislative preference for adoption when reunification efforts have failed.’ ” (In re Celine R., supra, at p. 53.)
The party claiming the exception has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re C.F. (2011) 193 Cal.App.4th 549, 553.) The factual predicate of the exception must be supported by substantial evidence, but the juvenile court exercises its discretion in weighing that evidence and determining detriment. (In re K.P. (2012) 203 Cal.App.4th 614, 622; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
As an initial matter, with respect to mother’s complaint that the juvenile court never mentioned section 366.26, subdivision (c)(1)(B)(i) (the statute setting forth the beneficial relationship exception to adoption), “nor suggested it was even considering applicability of the exception,” we feel compelled to note that, neither did mother. In this regard, mother has forfeited this argument. (In re Christopher B. (1996) 43 Cal.App.4th 551, 558; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) The juvenile court has no sua sponte duty to determine whether an exception to adoption applies. (E.g., In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.) Rather, the parent has the burden of proving that an exception applies. (Ibid.; In re C.F., supra, 193 Cal.App.4th at p. 553.) Mother’s counsel entered a general objection to termination. There was no specific mention of the applicability of the beneficial parental relationship exception or the corresponding statutory section. In any event, we reject mother’s arguments on their merits.
Mother argues that the juvenile court “did not engage in any balancing of detriment versus the benefit of adoption” in determining whether the exception to adoption applied and, instead, “side-stepped the balancing test entirely” and used the best interests analysis it had used in denying her petition for modification. The record belies this claim.
First, contrary to mother’s assertion, the juvenile court’s statement that it had “considered all the evidence . . . including what the Court heard and discussed with regards to the [section] 388 hearing,” in no way indicates it improperly utilized the best interests standard applicable to section 388 petitions, and not the balancing test required when determining whether the exception to adoption applies.
Second, the record reflects that the juvenile court did, in fact, consider the beneficial relationship exception to adoption and employ the proper balancing test. After hearing argument from counsel for the Agency, mother, and the minor, each based on the proper balancing test, the juvenile court first emphasized that the minor’s caregivers would need to be attentive to her mental health needs, and that the minor would likely want to know her natural mother and how she is doing. The juvenile court then expressly stated that “[t]he second part of it is that she may need to know [mother] because of some medical considerations, but it’s clear this little girl needs permanency. It’s clear to the Court, based on all the evidence, given her age, she’s not yet four, and based on the evidence that she is adoptable. Guardianship has some sense of permanence, but it’s not permanent. So the Court is going to, based on all the evidence presented, follow the recommendation of the agency, terminate parental rights.” These remarks reflect the juvenile court’s consideration of Siggins’ report and testimony, particularly Siggins’ opinion that the minor’s caregivers would need to be attentive to the minor’s mental health in order to help the minor accommodate the losses. The juvenile court’s remarks also reflect that it considered the minor’s need for permanence and the less-than-permanent nature of guardianships. The record is, therefore, clear that the juvenile court did utilize the appropriate balancing test, and not the general “best interests” test employed for its consideration of mother’s section 388 petition.
Finally, we also reject mother’s claim that the juvenile court erred in determining the beneficial parental relationship exception to adoption did not apply in this case.
The exception “must be examined on a case-by-case basis, taking into account the many variables which affect a parent/child bond. The age of the child, the portion of the child’s life spent in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent and child, and the child’s particular needs are some of the variables which logically affect a parent/child bond.” (Autumn H., supra, 27 Cal.App.4th at pp. 575-576.)
B. ICWA Inquiry
Mother also contends reversal is required because the Agency failed to interview the maternal grandmother about the minor’s Indian ancestry and failed to give the tribes notice of the maternal grandmother’s address and other identifying information. We agree. We shall reverse and remand the matter with directions that the juvenile court vacate its orders terminating parental rights and reconsider the issue of ICWA notice compliance after the Agency has properly performed its duties under the ICWA.
When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, the ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) A mere suggestion of Indian ancestry is sufficient to trigger the notice requirement. (In re Robert A., supra, at p. 989.) Notice requirements are construed strictly. (Ibid.)
It is essential for the Agency to provide the Indian tribe with as much information as is known about the child’s ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include all of the following information, if known: the child’s name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for membership; names and addresses (including former addresses) of the child’s parents, grandparents, and great-grandparents, and other identifying information; and a copy of the dependency petition. (25 C.F.R. § 23.111 (d)(1)-(4) (2015); § 224.2, subd. (a)(5)(A)-(D); In re D.W. (2011) 193 Cal.App.4th 413, 417; In re Mary G. (2007) 151 Cal.App.4th 184, 209.) All this information may not be available, even with inquiry of available relatives, but the Agency has an ongoing duty to interview the minor’s parents and extended family, if known, concerning the child’s membership status or eligibility. (§ 224.3, subds. (a) & (c); Cal. Rules of Court, rule 5.481(a)(4).)
Mother contends that the Agency failed to inquire about Indian heritage from the maternal grandmother. We agree that a reasonable construction of the record reveals that the Agency failed to perform the inquiry required by section 224.3, subdivision (c), and therefore to provide the notice information mandated by section 224.2, subdivision (a)(5).
Mother and father initially denied Indian heritage when the case was initiated. After the minor’s half sibling was born in July 2016, mother reported during an interview with the social worker that she may have Indian heritage. According to the social worker, mother had signed a Parental Notification of Indian Status form on July 12, 2016, stating she may have Blackfeet and/or Cherokee heritage.
Notice under ICWA was mailed to the Blackfeet tribe, the three federally-recognized Cherokee tribes, the BIA and the Secretary of the Interior on August 30, 2016. However, the notice was missing the maternal grandmother’s and maternal grandfather’s current and former addresses, their tribal bands, locations and membership/enrollment numbers, if known, and it failed to include any information at all about either set of maternal great-grandparents. Yet, based on a review of the record, we must conclude that much of this information was likely available to the Agency had it made an adequate inquiry.
Here, the social worker met with the maternal grandmother and two maternal uncles, shortly after the petition was filed in March 2015. In connection with the preparation of the disposition report, mother identified her family members, including the maternal grandmother, the maternal grandmother’s husband, the maternal grandfather, the maternal grandfather’s wife, and three maternal uncles. Additionally, the maternal grandmother participated in the dependency case from the outset. She was present at numerous court hearings, both before and after mother made her claim of Indian heritage, and participated at least monthly in mother’s visits. One of the minor’s three maternal uncles also attended the September 27, 2016, hearing—which was after mother claimed Indian heritage. Nonetheless, there is no indication in the record that the Agency made any effort to inquire of any of these relatives to obtain the necessary ICWA notice information. If such inquiry was made, the Agency should have documented the fact for the court as part of its request to find that the ICWA did not apply.
III. DISPOSITION
The order terminating parental rights is reversed conditionally, and the matter is remanded to the juvenile court with directions to order the Agency to comply with the inquiry and notice provisions of the ICWA. If, after proper and complete notice, the BIA or a tribe determines that the minor is an Indian child as defined by the ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of the ICWA. If, on the other hand, no response is received, or BIA or a tribe determines the minor is not an Indian child, then the juvenile court shall reinstate all previous findings and orders.


/S/

RENNER, J.



We concur:


/S/

RAYE, P. J.


/S/

DUARTE, J.