In re L.S.

Filed 3/5/07 In re L.S. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Hideo Chino, Referee. Affirmed.

Kimberly A. appeals a judgment of the juvenile court terminating her parental rights to her minor daughter L.S. under Welfare and Institutions Code section 366.26.^[1] Kimberly contends: (1) the court and the San Diego County Health and Human Services Agency (Agency) did not comply with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.); (2) the court erred by summarily denying her section 388 modification petition; and (3) the evidence was insufficient to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. We affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2005, two-year-old L.S. became a dependent of the juvenile court under section 300, subdivision (b) based on findings her parents, Kimberly and Sean S., neglected L.S.'s medical needs and had not reunified with another child who was removed from their care. The court placed L.S. in foster care and offered Kimberly reunification services, including counseling, psychological and psychiatric evaluations, a parenting class and substance abuse treatment.

The social worker reported the parents had a history of improperly caring for L.S., who was medically fragile because she had only one kidney. For example, Kimberly did not obtain prescription drugs to treat L.S.'s pneumonia, she removed L.S. from the hospital against medical advice, and she neglected to change L.S.'s urine-filled diaper, which exposed L.S. to the likelihood of infection. Kimberly had a lengthy history with child protective services. None of her eight children were in her care. She had a history of drug abuse and relationships involving domestic violence. Kimberly had been arrested several times and had two drug-related convictions.

During the next six months, Kimberly attended five of seven counseling appointments and always arrived late. She did not accept responsibility for L.S.'s dependency, and continued to portray herself as a victim of the "system." Kimberly had not participated in a parenting class or substance abuse treatment. She was arrested two more times and charged with several crimes. In the social worker's opinion, Kimberly could not safely parent her "special needs" daughter because she had little insight into her own problems and how they exacerbated the risk to L.S. Kimberly did not benefit from the services she received and remained defensive and resistant to change.

At a contested six-month review hearing, the social worker testified Kimberly had cancelled at least 10 visits with L.S., and often left visits early. Kimberly testified that when she was recently arrested for being under the influence of a controlled substance, she was trying to commit suicide. The court terminated Kimberly's services and set a section 366.26 selection and implementation hearing.

The social worker assessed L.S. as adoptable because she was generally healthy and doing well developmentally. L.S. had been placed with caregivers who wanted to adopt her and had adopted her sister F.S. L.S. was thriving in this placement. She referred to her caregivers as "mommy" and "daddy," and had developed a relationship with F.S. If this family could not adopt L.S., there were 44 other families interested in adopting a child with her characteristics.

The social worker reported Kimberly's visits were initially sporadic, but she then began visiting more consistently. The visits went well and were described as "playful." L.S. seemed comfortable with Kimberly, although she made no eye contact with her and often played independently. L.S. did not appear distressed or anxious when she separated from Kimberly at the end of visits. In the social worker's opinion, the relationship between Kimberly and L.S. was neither parental nor beneficial. L.S. did not have a significant bond with Kimberly and seemed ambivalent toward her. Kimberly was presently incarcerated after her arrest for burglary, forgery, fraud, and being under the influence of a controlled substance. The social worker recommended the court terminate parental rights and order adoption as L.S.'s permanent plan.

A Court Appointed Special Advocate (CASA) filed reports recommending L.S. be freed for adoption. The CASA noted L.S. came into the dependency system as a special needs child because of her medical condition and developmental delays. Since being placed in foster care, L.S. had shown "marked improvement" and no longer had medical problems.

Kimberly filed a section 388 petition for modification, seeking to have the court place L.S. with her when she was released from jail, or alternatively, order additional services. As changed circumstances, Kimberly alleged she had fully availed herself of services while incarcerated, including attending Narcotics Anonymous/Alcoholics Anonymous (NA/AA) meetings, enrolling in the Family TIES program and pursuing her general equivalency diploma (GED). She further alleged she had "never been more driven to succeed and to change her life for the benefit of her daughter." Regarding best interests, Kimberly alleged L.S. "could be raised by her mother who has been motivated to do services for her child. The child could remain with her family."

The court found that even construing the evidence favorably to Kimberly, there was no prima facie showing circumstances had changed or that the proposed modification was in L.S.'s best interests. The court summarily denied the section 388 petition.

At a contested selection and implementation hearing on June 6, 2006, the court received into evidence Agency's various reports, two CASA reports and social worker David Smith's curriculum vitae. The parties stipulated to Smith's testimony that Smith had been assigned to L.S.'s case since September 21, 2005, and there was no new information that would cause him to change his recommendation of adoption.

Kimberly testified she had regularly visited L.S. once a week until she was incarcerated. She played with L.S. during visits, changed her diapers, fed her, and took her to the bathroom. Kimberly claimed L.S. responded to her directions and was concerned when visits ended. Kimberly opposed adoption.

The court found L.S. was adoptable and none of the exceptions to terminating parental rights applied. The court noted Kimberly had visited L.S. fairly consistently, but there were also periods of sporadic visitation. It also noted Kimberly and L.S. had no parent-child relationship, and L.S. would not benefit from continued contact with Kimberly. The court terminated parental rights and referred L.S. for adoptive placement.

DISCUSSION

I

Kimberly contends the judgment terminating parental rights must be reversed because the court and Agency did not comply with the notice requirements of ICWA. Kimberly asserts that a prior finding ICWA did not apply in F.S.'s case, and Kimberly's statement she did not "qualify" under ICWA, were insufficient to allow the court to find ICWA did not apply in L.S.'s case.

A

In reports prepared for the detention, jurisdiction and disposition hearings, Agency stated ICWA did not apply in L.S.'s case. The possibility of Indian heritage had been explored in F.S.'s case when Kimberly claimed she had Penobscot Nation of Maine (Penobscot Tribe) Indian heritage. Notice was sent to the Penobscot Tribe and a response was received stating F.S. was not an eligible member of the tribe. The social worker in L.S.'s case asked Kimberly if she or her family had American Indian heritage. Kimberly responded, "I do, but we can't find it. I cannot find the numbers you need so I don't qualify." When the social worker inquired further about possible Indian heritage, Kimberly said she did not qualify.

At the detention hearing, the court inquired about ICWA's applicability. Kimberly's counsel responded: "As far as the mother knows, she's kind of going based on the last child where there's apparently nothing significant to find that ICWA would apply. So, I think we're in the same position today." The court found ICWA did not apply.^[2]

B

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 Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) ICWA defines an Indian child as any unmarried person who is under age 18 and is 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).)

When a court "knows or has reason to know that an Indian child is involved" in a juvenile dependency proceeding, a duty arises under ICWA to give the Indian child's tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. 1912(a); In re Aaliyah G. (2003) 109 Cal.App.4th 939, 941.) Alternatively, if there is insufficient reason to believe a child is an Indian child, notice need not be given. (In re O.K. (2003) 106 Cal.App.4th 152, 157; In re Aaron R. (2005) 130 Cal.App.4th 697, 707.)

California Rules of Court, rule 5.664(d),^[3]which implements ICWA's notice provisions in California courts, provides that the court and the county welfare department have "an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . is to be, or has been, filed is or may be an Indian child." "[T]he social worker must ask the child, if the child is old enough, and the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors." (Rule 5.664(d)(2).) "The circumstances that may provide probable cause for the court to believe the child is an Indian child include, but are not limited to, the following: [] (A) A person having an interest in the child . . . informs the court or the county welfare agency . . . or provides information suggesting that the child is an Indian child; [] (B) The residence of the child, the child's parents, or an Indian custodian is in a predominantly Indian community; or [] (C) The child or the child's family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service." (Rule 5.664(d)(4).)

C

Kimberly, who was represented by counsel, did not object to the adequacy of the ICWA inquiry or the validity of the court's finding. Indeed, the evidence showed the Penobscot Tribe previously determined L.S.'s full sibling F.S. was not eligible for enrollment. Agency satisfied its duty of inquiry when it again asked Kimberly if she or her family had American Indian heritage, and Kimberly admitted she had no information regarding the possibility of Indian heritage. (In re S.B. (2005) 130 Cal.App.4th 1148, 1160 [full disclosure of possible Indian heritage is entirely within parent's knowledge].) Kimberly's counsel agreed, stating there was no reason to believe ICWA applied. (Ibid. [parent's counsel has a duty to protect his or her client's interest under ICWA and bring forth information at the "earliest possible time"].) The court reasonably relied on uncontroverted evidence in Agency's reports, and the statements of Kimberly and her counsel, to find ICWA did not apply. Because the court did not know, or have reason to know, an Indian child was involved in the proceedings, ICWA's notice provisions were not triggered. (25 U.S.C. 1912(a); In re O.K., supra, 106 Cal.App.4th at p. 157; In re Aaron R., supra, 130 Cal.App.4th at p. 707.)^[4]

Even were we to conclude the court and Agency did not adequately discharge their duties of inquiry under rule 5.664(d), reversal is not required. (In re K.W. (2006) 144 Cal.App.4th 1349, 1360 [parent did not show any possible ICWA error was prejudicial].) Neither Kimberly nor her appellate counsel has given us any evidence L.S. may be an Indian child within the meaning of ICWA, or that remand for further inquiry in the trial court would produce a more favorable outcome for Kimberly. Where, as here, the record is devoid of any evidence a child has Indian heritage, reversing the judgment terminating parental rights for the sole purpose of inquiring about possible Indian ancestry would serve only to delay permanency for a child such as L.S. rather than further the important goals and protect the procedural safeguards intended by the ICWA. (In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431 [parents of non-Indian children should not be permitted to cause additional unwarranted delay and hardship without any showing the interests protected by ICWA are implicated].)

II

Kimberly contends the court erred by summarily denying her section 388 modification petition. She asserts she made a prima facie showing her circumstances had changed and the proposed modification was in L.S.'s best interests.

A

Under section 388, a party may petition the court to change, modify or set aside a previous court order. The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence, and (2) the proposed change is in the child's best interests. ( 388; In re Jasmon O. (1994) 8 Cal.4th 398, 415; In re Casey D. (1999) 70 Cal.App.4th 38, 47.) The petition must be liberally construed in favor of its sufficiency. (Rule 5.570(a); In re Marilyn H. (1993) 5 Cal.4th 295, 309.) "The parent need only make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H., supra, 5 Cal.4th at p. 310.) " '[I]f the petition presents any evidence that a hearing would promote the best interests of the child, the court will order the hearing.' [Citation.]" (In re Jasmon O., supra, 8 Cal.4th at p. 415; see also In re Hashem H. (1996) 45 Cal.App.4th 1791, 1798-1799.) "However, if the liberally construed allegations of the petition do not make a prima facie showing of changed circumstances and that the proposed change would promote the best interests of the child, the court need not order a hearing on the petition. [Citations.] The prima facie requirement is not met unless the facts alleged, if supported by evidence given credit at the hearing, would sustain a favorable decision on the petition." (In re Zachary G. (1999) 77 Cal.App.4th 799, 806.)

B

Kimberly alleged her circumstances had changed because she was (1) attending NA/AA meetings, (2) enrolled in a parenting program, (3) pursuing her GED, and (4) now motivated to succeed and change her life for L.S.'s benefit. However, Kimberly presented no evidence she successfully completed a drug rehabilitation program or participated in therapy. Although Kimberly had made some progress by attending programs in jail, she had not resolved her chronic substance abuse problem or mental health issues that compounded her inability to safely parent L.S. Thus, any changes in Kimberly's circumstances were "not legally sufficient to require a hearing on her section 388 petition." (In re Angel B. (2002) 97 Cal.App.4th 454, 465.)

Even had Kimberly shown sufficient changed circumstances, she did not show it was in L.S.'s best interests to place her with Kimberly or order additional services. Kimberly had neglected L.S.'s medical needs and contributed to her developmental delays. Kimberly did not participate in services during the reunification period and made no showing she was able or ready to have L.S. placed with her. L.S. needed stability in a permanent, adoptive home. She had bonded with her caregivers and developed a sibling relationship with F.S. Because the facts alleged would not have sustained a favorable decision on the section 388 petition, Kimberly was not entitled to an evidentiary hearing. (In re Zachary G., supra, 77 Cal.App.4th at p. 808; In re Jamika W. (1997) 54 Cal.App.4th 1446, 1450-1451.)

III

Kimberly challenges the sufficiency of the evidence to support the court's finding the beneficial parent-child relationship exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating her parental rights. She asserts she regularly visited L.S. who would benefit from continuing the relationship with her.

A

We review the finding section 366.26, subdivision (c)(1)(A) was inapplicable 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 must uphold those findings. We do not evaluate the credibility of witnesses, attempt to resolve conflicts in the evidence or determine the weight of the evidence. Instead, we must draw all reasonable inferences in support of the findings, consider the record favorably to the juvenile court's order and affirm the order even if other evidence supports a contrary finding. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The appellant 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.)

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) Where, as here, the court finds a child cannot be returned to his or her parent and is likely to be adopted, 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.) One such exception applies 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)(A).) 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.)

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. (1999) 73 Cal.App.4th 823, 827.) "Interaction between natural parent and child will always confer some incidental benefit to the child. . . . The relationship arises from the day-to-day interaction, companionship and shared experiences." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) 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. (Ibid.; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.)

B

The evidence showed Kimberly's visits with L.S. were sometimes consistent and other times sporadic. Kimberly cancelled at least 10 visits with L.S., and she often left visits early. No visits occurred after Kimberly was incarcerated.

Even were we to view Kimberly's visitation as consistent, Kimberly 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). L.S. enjoyed her playtime with Kimberly during one-hour supervised visits, but she often played independently and seemed ambivalent toward Kimberly. L.S. did not appear distressed or anxious when she separated from Kimberly at the end of visits. In the social worker's opinion, the relationship Kimberly had with L.S. was neither parental nor beneficial. There was no showing L.S. would be "greatly harmed" if she no longer had contact with Kimberly. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.)

Further, Kimberly did not show maintaining her relationship with L.S. outweighed the benefits of adoption. L.S. is in a stable, nurturing environment with caregivers who are committed to adopting her and have adopted L.S.'s sister. Where, as here, the biological parent does not fulfill a parental role, "the child should be given every opportunity to bond with an individual who will assume the role of a parent." (In re Brittany C. (1999) 76 Cal.App.4th 847, 854.) L.S., whose needs could not be met by Kimberly, deserves to have her custody status promptly resolved and her placement made permanent and secure. Substantial evidence supports the court's finding the exception of section 366.26, subdivision (c)(1)(A) did not apply to preclude terminating parental rights.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HUFFMAN, Acting P. J.

McINTYRE, J.

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

^[2] L.S.'s father Sean, who is not a party to this appeal, filed a paternity questionnaire indicating he had no American Indian heritage. Sean is also F.S.'s father.

^[3] All rule references are to the California Rules of Court.

^[4] Kimberly claims it is possible the notice sent to the Penobscot Tribe in F.S.'s case in 2002 was improper. However, this issue is not properly before us on appeal in L.S.'s case.