In re Gage Z.

Filed 3/23/07 In re Gage Z. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Cheryl Z., mother of the minor, appeals from orders denying her petition for modification and terminating her parental rights. (Welf. & Inst. Code, 366.26, 388, 395; further undesignated statutory references are to this code.) Appellant contends the court erred in denying her petition for modification and in failing to find an exception to the preference for adoption as a permanent plan. Appellant also argues notice pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) was incomplete. Agreeing only with the latter contention, we reverse the juvenile courts orders and remand for compliance with the ICWA.

FACTS

The two-year-old minor was removed from appellants custody in December 2004 due to allegations of neglect, concerns of physical abuse and appellants failure to comply with an informal service plan. Appellant identified both Blackfeet and Cherokee heritage, however, notice of the proceedings was sent only to the Cherokee tribes. At disposition, the court ordered appellant to comply with a reunification plan.

Early progress reports indicated appellant was participating in the plan, however a psychological evaluation concluded it was doubtful that appellant would benefit from the services. Although the social worker recommended termination of services due to limited progress and inconsistent visitation, the court ordered an additional six months of services for appellant.

The review report of January 2006 again recommended termination of services. Appellant had cancelled many visits but was allowed to progress to unsupervised visitation. The social worker dropped in on one such visit, found evidence of drug use and returned appellant to supervised visitation. Although appellant originally denied that her boyfriend used drugs, she later insisted the marijuana found in the home was his. Appellant tested at the social workers direction and provided a test positive for marijuana. In February 2006, the court set a contested review hearing and ordered that appellants boyfriend have no contact with the minor. An addendum report stated appellant had refused random testing however, the two tests she did provide were negative. At the review hearing held in April 2006, the juvenile court terminated services.

The assessment for the section 366.26 hearing recommended adoption as the preferred permanent plan because the minor was likely to be adopted by his current caretakers. Since the minors placement in his current home at the end of March 2006, appellant had been visiting weekly. A bonding assessment disclosed there was a positive relationship between appellant and the minor but the bond was weakening and lack of permanency would be more detrimental to the minor in the long term than terminating contact with appellant. The bonding assessment did recommend that tapering off visits prior to complete termination of contact between the minor and appellant would be beneficial.

Appellant filed a petition for modification of the orders terminating services seeking either return of the minor or renewal of services. The petition alleged appellant had been regularly attending Narcotics Anonymous and was complying with her psychiatric medication regimen, attending counseling and working. The petition further alleged the proposed modification was in the minors best interests because there was a strong bond between appellant and the minor.

At the combined hearing on the petition for modification and selection of a permanent plan, appellant testified she had been consistently participating in services on her own after court-ordered services were terminated. When the court ordered there be no contact between her boyfriend and the minor, she had put the relationship with her boyfriend on hold until the minor was returned to her. The boyfriend had moved out two months after services were terminated because she felt she would have no chance of getting the minor back if he remained in the home.

The court denied the petition for modification, finding appellant had shown that her circumstances were changing, but not changed. The court observed that appellant still lacked understanding of why the minor was removed and returning the minor to her custody could not occur until she gained an understanding of her own mental health condition and how it affected her parenting. The minors need for stability was a significant factor in the courts decision as was the fact that the relationship between appellant and the minor was more that of a friendly visitor than a parent and child. The court also found that appellant had failed to establish that continuing contact with her would benefit the minor to a degree that termination of parental rights would be detrimental to him. The court noted that overall visitation had not been regular and, based upon the bonding assessment, the relationship between appellant and the minor did not outweigh the minors need for permanency.

DISCUSSION

I

Appellant contends notice pursuant to ICWA was inadequate because no notice of the proceedings was sent to the Blackfeet tribe.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court has an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d).) If an Indian child may be involved, notice of the proceeding and the right to intervene must be sent to the identified tribe or tribes. (25 U.S.C. 1912; Cal. Rules of Court, rule 5.664(f).) Failure to comply with the notice provisions is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424.)

Respondent concedes the error in failing to notify the Blackfeet tribe and asks for a limited remand to remedy it. We accept the concession but address appellants remaining contentions in order to resolve those issues.

II

Appellant contends the court erred in failing to grant her petition for modification since she had shown there was a change in circumstances and that the proposed order would benefit the minor.

A parent may bring a petition for modification of any order of the juvenile court pursuant to section 388 based on new evidence or a showing of changed circumstances. Section 388 provides in part: Any parent . . . may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify, or set aside any order of the court previously made or to terminate the jurisdiction of the court. . . . [] . . . If it appears that the best interests of the child may be promoted by the proposed change of order, recognition of a sibling relationship, or termination of jurisdiction, the court shall order that hearing be held . . . . The parent requesting the change of order has the burden of establishing that the change is justified. [Citation.] The standard of proof is preponderance of the evidence. [Citation.] (In re Michael B. (1992) 8 Cal.App.4th 1698, 1703.) Determination of a petition to modify is committed to the sound discretion of the juvenile court and, absent a showing of a clear abuse of discretion, the decision of the juvenile court must be upheld. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Robert L. (1993) 21 Cal.App.4th 1057, 1067.) The best interests of the child are of paramount consideration when the petition is brought after termination of reunification services. (Stephanie M., supra, at p. 317.) In assessing the best interests of the child, the juvenile court looks not to the parents interests in reunification but to the needs of the child for permanence and stability. (Ibid.; In re Marilyn H. (1993) 5 Cal.4th 295, 309.)

Appellant did not begin serious participation in either services or visits until court-ordered services were terminated. By the time of the hearing, she had engaged in less than six months of services. Moreover, her testimony, particularly about her boyfriend and their relationship, made it clear that she was not willing to fully commit on a long-term basis to meeting the minors needs. Her recent resumption of regular supervised visitation was commendable but did not negate the evidence that she neglected the minors care when he was in her home on an unsupervised visit. The minor had been out of appellants care for almost two years and needed permanence and stability. Appellant was showing progress in her services but still rationalized her conduct and avoided taking responsibility for her circumstances. The juvenile court did not abuse its discretion in concluding that appellant had not established that the proposed modification was in the minors best interests.

III

Appellant contends the evidence supported a finding that termination of parental rights would be detrimental to the minor because he would benefit from continued contact with her.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances that 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).) 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 Melvin A. (2000) 82 Cal.App.4th 1243, 1252; In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; Cal. Rules of Court, rule 1463(e)(3); Evid. Code,  500.)

One of the circumstances in which termination of parental rights would be detrimental to the minor is: The 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).) The benefit to the child must promote 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 parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Brian R. (1991) 2 Cal.App.4th 904, 924.)

Appellant did not establish the first element of the exception because the evidence showed she did not visit the minor regularly throughout the proceedings. Even if her recent regular visits were enough to establish regular visitation, appellant did not show that her continued contact with the minor would be beneficial to him. The bonding study performed in this case unequivocally stated that the minor would not suffer long-term harm if parental rights were terminated. The minors bond to appellant had weakened over time partly due to her erratic pattern of visits and partly because his day-to-day care was provided by others during the lengthy period over which appellant failed to benefit from services and reunify with him. The study did recommend tapering off visits and transitioning from the current visitation schedule to no contact, but that recommendation of easing potential short-term distress on the part of the minor did not amount to a suggestion that the parent-child relationship was so strong that it outweighed the long-term benefits of a permanent stable adoptive home. The court did not err in concluding appellant failed to meet her burden of showing the existence of an exception to the preference of adoption.

DISPOSITION

The orders denying the petition for modification and terminating parental rights are reversed and the matter is remanded for the limited purpose of permitting the Department of Health and Human Services to comply with the notice provisions of the ICWA and determining whether ICWA applies in this case. The juvenile court shall order the Department of Health and Human Services to comply promptly with the notice provisions of the ICWA as to the Blackfeet tribe. Thereafter, if there is no response or if the tribe determines the minor is not an Indian child, the orders shall be reinstated. However, if the tribe determines the minor is an Indian child or if information is presented to the juvenile court that affirmatively indicates the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct new hearings on the petition for modification and the selection and implementation of a permanent plan in conformance with all provisions of the ICWA.

HULL, J.

We concur:

SCOTLAND, P.J.

BUTZ , J.

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