Not to be Published in the Official Reports
Appellants Claude P. (father) and Leann G. (mother) appeal from the juvenile court's order terminating their parental rights over their daughter, Amber P. (minor), born in January 2000. We affirm the juvenile court's order.
On October 30, 2006, the Los Angeles Department of Children and Family Services (the Department) received a referral alleging that minor's parents were homeless and were sending the child to school hungry, dirty, and with rotting teeth. On November 2, 2006, the social worker interviewed the parents, who said they had not been homeless for long. Although there was no food, refrigerator, or stove in the motel room in which the family was residing, the parents insisted that minor was well fed. They also claimed that minor received regular dental care at a clinic in Whittier, but they did know the date of her last dental examination.
Mother's history with the Department included four older children with whom she had failed to reunify. Both parents had substantial criminal records, including numerous convictions for drug related charges. In addition, father had two convictions for inflicting corporal injury on a spouse. Both parents denied using drugs. They initially said they were willing to submit to drug testing but then declined to do so on the day of the interview.
Minor told the social worker that she sometimes did not eat breakfast or dinner because her parents did not have money for food. Minor could not say how often she bathed or showered. The social worker observed minor's teeth to be seriously decayed, concluded that minor was at a very high risk of harm, and detained minor from her parents on November 20, 2006.
On November 27, 2006, the Department filed a petition under Welfare and Institutions Code section 300,
The juvenile court ordered family reunification services for both parents, including parent education, individual counseling and a drug and alcohol program with random testing. The court also ordered monitored visits with minor and gave the Department discretion to liberalize the visits.
In an interim review report dated December 5, 2006, the Department reported that minor was in foster care. The maternal grandmother had told the social worker that she was unable to care for minor because she was caring for minor's disabled older sibling. The maternal grandmother further stated that she was afraid of father, with whom she had conflicts in the past because of his angry, volatile, and controlling behavior.
On January 17, 2007, the Department filed a first amended petition alleging that father's domestic violence convictions in 1997 and 2000 endangered minor.
In its jurisdiction/disposition report, the Department reported that mother's prior child welfare history included failure to reunify with four of minor's older siblings. The maternal grandmother had assumed legal guardianship over three of the siblings, and the fourth sibling was adopted by another family. Neither parent had been interviewed in connection with the jurisdiction/disposition report because they both failed to appear for scheduled appointments with the social worker. The parents had visited minor once between November 20, 2006 and January 10, 2007. The Department recommended that no reunification services be provided to the parents.
Minor's foster parents reported that the child was well behaved and got along well with others. The foster parents expressed an interest in pursuing legal guardianship if family reunification efforts were unsuccessful.
The Department attached to the jurisdiction/disposition report copies of the ICWA notices sent on December 5, 2006, to the Cherokee Nation, the United Keetoowah Band of Cherokee, the Eastern Band of Cherokee Indians, the Bureau of Indian Affairs, the Secretary of the Interior, and both parents. The Department received signed returned receipts for all of the notices. Because father had failed to appear for scheduled appointments with the social worker to complete the "American Indian Heritage Questionnaire" form, the social worker sent him the questionnaire via certified mail. The social worker also spoke with father's attorney and requested further information regarding father's possible Cherokee heritage. The social worker received no additional information.
Mother and father were present at the January 17, 2007 jurisdiction hearing. The juvenile court arraigned both parents on the first amended petition, granted mother's request for mediation, and set a date for the adjudication hearing. The court ordered the Department to provide counseling referrals to mother and to prepare a supplemental report addressing her progress and any change in its recommendations regarding family reunification services.
In a February 22, 2007 addendum report, the Department reported that father was incarcerated for a parole violation and had not participated in any drug testing. Mother was enrolled in parenting classes and had begun individual counseling. Mother tested positive for amphetamines and methamphetamines on January 5, 2007, failed to appear for a January 17, 2007 test, and had a negative drug test on February 5, 2007.
On February 22, 2007, the juvenile court sustained a mediated version of the first amended petition
A March 27, 2007 supplemental report by the Department indicated that mother was enrolled in outpatient drug counseling and had completed six session of individual counseling. Father had also enrolled in drug counseling and had attended one meeting. Mother and her counsel were present at the March 28, 2007 review hearing. Father's counsel was also present, but father was not. The Department's counsel asked the juvenile court to make an ICWA finding, and the court, without objection from counsel for either parent, found that ICWA did not apply.
Both parents were present at the April 9, 2007 hearing at which the juvenile court sustained the amended petition against father. The court ordered both parents to attend a drug rehabilitation program with random testing, parent education, individual counseling to address domestic violence and, when appropriate, counseling with minor. Both parents were granted monitored visitation.
3. Review Proceedings
At the time of the Department's August 23, 2007 review report, the parents remained transient, living in motels. Father was incarcerated from January 21, 2007, through March 19, 2007, and again from July 1, 2007 until July 31, 2007. Mother lived with the maternal grandmother while father was incarcerated, but resumed living with father when he was released from custody. Both parents were unemployed. Mother had been employed while father was incarcerated during the early part of 2007 but lost her job when father was released from custody.
Both parents had completed parenting classes, but had participated only minimally in drug counseling and individual counseling. Mother reported for drug testing a few times while father was incarcerated, but ceased doing so after his release. Father never reported for drug testing. Both parents were discharged from their drug treatment program in May 2007 for lack of attendance and refusal to test.
Mother had consistently attended weekly scheduled visits with minor. The visits became difficult, however, when father began participating after his release from custody. Minor's maternal grandmother and half-siblings, who had been participating in the weekly visits, stopped attending because they did not get along with father. Father was often angry, rude, and confrontational with minor's foster parents, who monitored the visits. On one occasion, minor told the social worker that she wanted to visit only with mother and the maternal grandmother, but then relented saying that she wanted father to come, so long as he did not say "mean" things. The Department expressed concerns about father's mental health and recommended that he receive a psychiatric evaluation, anger management, and individual counseling as a condition to continued visitation.
The juvenile court granted the Department's request for a psychological evaluation of father and ordered the parents not to visit together. The court found both parents to be in partial compliance with the case plan and continued family reunification services.
By February 2008, both mother and father had completed a parent education course. Mother's attendance at drug tests had been sporadic. She had tested negative five times and failed to appear four times. Father submitted to a drug test for the first time in August 2007, tested positive for methamphetamines, and then failed to appear for testing again until December. He had three negative tests thereafter.
Visitation continued to be problematic. Out of seven scheduled visits between September and mid-October, mother visited once and failed to appear for four visits. Father had not visited at all. Minor's foster parents no longer felt comfortable monitoring father's visits at any location other than a police station because of multiple negative experiences with father. The visits could not take place at the Department's offices because of scheduling difficulties. Father did not feel comfortable having his visits at a police station because he feared the foster parents would have him arrested.
Minor was thriving in the foster parents' home. The foster parents wished to care for minor permanently if reunification efforts failed. Although the foster parents had initially expressed interest in adopting minor, they were now considering legal guardianship because they were afraid of father's reaction and possible retaliation against them if they were to adopt minor.
At the February 21, 2008 review hearing, father's counsel complained that father had been unable to visit with minor for five months, in part because minor's foster family had moved to Victorville and were unable to schedule monitored visits at the Department's offices during business hours. The juvenile court ordered the Department to set up a visitation schedule with father and to permit mother and father to visit together. The juvenile court further found both parents to be in compliance with the case plan and ordered continued reunification services.
The Department's April 2, 2008 report noted that both parents continued to have sporadic attendance at drug tests. Mother tested negative once in February 2008 but failed to appear for four tests. Father failed to test at all in February and March 2008. The parents had moved into a sober living residence, but they refused to sign a release form that would enable the director of the facility to provide the Department with information on their progress.
Mother attended one of four scheduled visits in February and March 2008, and the foster parents reported that mother appeared to be "high" during that visit. In an effort to facilitate visits with both parents, the Department arranged for weekly visits at the foster family agency's office in West Covina. Because minor had a half day of school on Wednesdays, the Department initially tried to schedule visits for that day, but mother said she worked on Wednesdays and did not feel comfortable asking her employer to change her work schedule. Visits were accordingly set for Tuesdays to accommodate mother's work schedule. On March 18, 2008, the day of the first visit under the new schedule, the parents arrived 20 minutes late. The visit went well until the last few minutes. At that point, father began arguing that the visits should take place in Santa Fe Springs, despite the fact that minor would have to travel an additional 45 minutes to that location. Father began shouting and became confrontational with the foster family social worker who had monitored the visit, and the social worker eventually asked the parents to leave. The parents failed to appear at the next scheduled weekly visit.
The parents arrived 25 minutes late for the April 1, 2008 visit. During the visit, father repeatedly asked minor what happened to a stuffed animal the parents had given her, and minor repeatedly answered that it was in her room. When the monitor asked father to change the subject, father stated, in front of minor, "Anything we give her, they give away. They're trying to get her to forget about us."
At the April 2, 2008 hearing, the juvenile court expressed concern that mother and father were inconsistent with their drug testing. The court continued the matter and did not change its orders.
In an August 20, 2008 status review report, the Department reported that the parents were again homeless, living in various motels and shelters. They had been asked to leave two different sober living residences because of conflicts with other residents and with the director of the facility.
Father was in violation of his probation. According to father's probation officer, father had tested positive for methamphetamines on April 18, 2008 and May 6, 2008, and then failed to appear for a May 16, 2008 test or to report to the probation officer. Father tested positive for cannabis for the Department on May 15, 2008, and failed to appear for a test on June 3, 2008. Mother had two negative tests in April 2008 and failed to appear for testing thereafter.
During the six months preceding the August 2008 review hearing, mother and father attended slightly more than half the scheduled visits with minor. Minor remained placed with her foster parents, who wished to provide her with a permanent home in the event she was unable to reunify with her parents. Minor stated that she wanted to remain with her foster family and told the social worker that she would be "a little bit happy to go home, but a lot happy to stay with her foster family."
In a last minute information report for the court dated August 20, 2008, the Department described another incident involving father's volatile behavior during a visit with minor. On July 30, 2008, father became enraged and started screaming obscenities when a new foster family agency social worker brought minor to the visit. Father left when a police officer who happened to be in the building came into the room to investigate. During the ride home after the incident, minor told the social worker that she did not want to visit with her parents the following week. Thereafter, the foster family agency office informed the Department that the agency's West Covina office was reluctant to host further visits between minor and her parents because the entire staff was afraid of father. The foster family agency was unwilling to host further visits between minor and the parents unless both the director of office and office security was present.
At the August 20, 2008 hearing, the juvenile court ordered continued visits at another location. The matter was continued for a contested permanent plan hearing.
4. Section 366.26 Proceedings
In October 2008, the Department reported that father was in violation of his probation, and a warrant had been issued for his arrest. Neither parent had appeared for drug testing since the last hearing date. Visitation continued to be problematic. The parents insisted on repeatedly changing the day of the weekly visits, from Tuesdays to Wednesdays to Thursdays. Despite the Department's efforts to accommodate the parents' requests, father was uncooperative and confrontational. The parents accordingly had no visits from August to October.
In a last minute information report for the court filed on December 16, 2008, the Department informed the juvenile court of a monitored visit that took place on December 10, 2008, the first visit between minor and the parents since July 30, 2008. The visit occurred on a Wednesday because the director of the West Covina foster family agency agreed to adjust her own schedule to accommodate the parents. Father continued to insist that the visits take place on Wednesdays, despite the fact that the director of the West Covina foster family agency was not available to monitor Wednesday visits. Because of father's unwillingness to cooperate with the Department, the social worker contacted father's employer, to determine whether father's work schedule could be altered to allow visits on another day. Father's employer, Pastor Todd of the Calvary Chapel, confirmed that both parents were employed by him and assured the social worker that the parents' work schedules were flexible. The Department further reported that neither parent had been submitting to drug testing, and recommended that family reunification services be terminated.
Neither the parents nor the social worker were available for the hearings in October and December 2008, and the matter was continued to January. Neither parent appeared at the January 5, 2009 hearing. The juvenile court denied parents' counsels' request for a continuance and received the Department's documentary evidence. The Department's social worker testified that she had been assigned to the case since December 2006. She discussed the parents' failure to submit to random drug testing. She also described difficulties she had experienced in scheduling monitored visits.
The parents were present at the hearing the following day. The social worker continued her testimony and discussed her contact with the parents' employer in order to determine whether the parents' work schedules might be changed to accommodate visits with minor. Shaun Robles (Robles), the director of the foster family agency in Victorville, then testified about two visits between the parents and minor that she monitored in July and December 2008. Robles observed that mother was very interactive with minor during the visits, communicating with her and asking her questions, while father spent most of the time interacting with other adults in the room.
Father testified that he had completed a parenting and anger management class and that he attended drug counseling at the Gary Center, where he also drug tested. Father further testified that his visits with minor were supposed to occur on Wednesdays and that he was unavailable any other day.
After hearing argument from counsel, the juvenile court found that neither parent had complied with the case plan. The court terminated family reunification services and ordered an assessment pursuant to section 366.21, subdivision (i). The parents were given a writ advisement,
On January 30, 2009, father executed another Parental Notification of Indian Status form, indicating possible Cherokee heritage through minor's grandfather and great-grandfather. On February 9, 2009, the Department mailed ICWA notices to the parents, the Bureau of Indian Affairs, the Secretary of the Interior, the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee Indians. The United States Post Office certified that the Department sent the notices, return receipt requested, to these parties, and the Department received signed return receipts from all parties except the parents. The Department also received letters from the Cherokee Nation and the Cherokee Boys Club of the Eastern Band of Cherokee Indians, stating that minor was not an Indian child.
The Department's May 5, 2009, section 366.26 report summarized the Departments efforts to provide ICWA notices. Both parents were served with copies of the ICWA notices by personal service and by certified mail.
Visits between minor and the parents occurred on February 18, 2009, February 25, 2009, March 4, 2009, March 11, 2009, and March 18, 2009. The parents did not appear for the March 25, 2009 visit. In April 2009, minor began refusing visits with the parents. She refused to get into the social worker's car to be transported to visits and refused to speak with her parents on the telephone. When asked why she was refusing visits and phone calls with her parents, minor replied, "My dad always yells then my mom tries to make him stop and be quiet, or else they ([foster parents]) will end the phone call. My parents ask the same thing over and over again, . . . I like seeing them, but when they ask the same questions . . . they come for nothing. They ask about school and other stuff, but not about me." Minor's foster parents had an approved adoption home study and had applied to adopt minor.
Neither parent appeared for the May 5, 2009 hearing, but counsel for the parents set the matter for a contested hearing. The juvenile court reviewed the ICWA notices and found, without objection from counsel, that it had no reason to know that ICWA applied to the case.
At the section 366.26 hearing on June 24, 2009, the juvenile court received the Department's documentary evidence and heard argument from the parties. The juvenile court found that the beneficial parent-child relationship exception to terminating parental rights did not apply and terminated mother's and father's parental rights over minor. This appeal followed.
Father contends the order terminating parental rights must be reversed because he was not served with a copy of the ICWA notice or given an opportunity to review the notice for accuracy or completeness before it was sent to the Bureau of Indian Affairs, the Secretary of the Interior, and the Cherokee tribes.
Under the pertinent provisions of ICWA, if a juvenile court `"knows or has reason to know that an Indian child is involved, the party seeking foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe . . . of the pending proceedings and of their right of intervention."' (25 U.S.C. § 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 988.) The mere suggestion that a child is of Indian ancestry triggers the notice requirements. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) "Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents . . . ." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) For this reason, a parent cannot waive inadequate notice to the Indian tribes and does not forfeit that issue on appeal even if it was not raised in the juvenile court. (In re Alice M. (2008) 161 Cal.App.4th 1189, 1195-1197.)
Although a parent cannot waive notice to an Indian tribe, a parent can waive his or her own notice under ICWA by failing to raise the issue in the juvenile court. (In re S.B. (2008) 164 Cal.App.4th 289, 301-302 [mother who had actual notice of section 366.26 hearing and did not object to the hearing on the ground that she did not receive notice required under ICWA forfeited the issue on appeal]; In re Miracle M. (2008) 160 Cal.App.4th 834, 847 [parents who failed to object in the juvenile court that they were not served with copies of ICWA notice form did not preserve the issue for appellate review].) Here, both parents were served with notice of the May 5, 2009 hearing. Although neither parent appeared at that hearing, they were both represented by counsel, and neither counsel objected to lack of notice under ICWA or to the juvenile court's finding that minor was not an Indian child. The parents were again absent for the contested section 366.26 hearing, and counsel for both parents waived the parents' appearance. At the hearing, the juvenile court received into evidence the ICWA notices, without objection by counsel for either parent. The parents' failure to object that they were not served with a copy of the ICWA notice resulted in a forfeiture of the issue on appeal. (In re S.B., supra, 164 Cal.App.4th at pp. 301-302; In re Miracle M., supra, 160 Cal.App.4th at p. 847.)
Father cites In re Samuel P. (2002) 99 Cal.App.4th 1259 and In re A.B. (2008) 164 Cal.App.4th 832 as support for his argument that the Department's failure to ensure that he received a copy of the ICWA notice constitutes reversible error, notwithstanding father's failure to object to lack of notice in the juvenile court below. Neither case is authority for this position. The court in Samuel P. held that failure to provide proper notice under ICWA to an Indian tribe can be reversible error, unless the tribe participates in the dependency proceeding or expresses no interest in doing so. (In re Samuel P., supra, at p. 1265.) The Cherokee tribes noticed in the instant case expressed no interest in participating in the dependency proceedings. The court in In re A.B. did not find that failure to provide ICWA notice to the parents was reversible error and affirmed the juvenile court's order terminating parental rights. (In re A.B., supra, at pp. 843-844.)
The failure to obtain father's signature on the return receipt for the ICWA notices, even if error, was harmless in any event. Notice was received by the Cherokee tribes, who responded by stating that minor was not an Indian child. (See In re Samuel P., supra, 99 Cal.App.4th at p. 1265 ["The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings" (italics added)]; see also In re Miracle M., supra, 160 Cal.App.4th at p. 847 [mother's failure to demonstrate how giving the parents notice under ICWA would generate further information when tribe actually participated in dependency proceedings].) Father does not contend there was any error in the notices, nor has he demonstrated how giving him further notice would have generated additional relevant information.
II. Exception to Termination of Parental Rights
Mother contends the juvenile court erred by terminating her parental rights because the exception set forth in section 366.26, subdivision (c)(1)(A) applies to the instant case.
Section 366.26, subdivision (c)(1), provides for the termination of parental rights if family reunification services have been terminated and the juvenile court finds by clear and convincing evidence that the child is likely to be adopted. Once reunification services have been terminated, "`[f]amily preservation ceases to be of overriding concern . . . the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability. [Citation.]'" (In re Richard C. (1998) 68 Cal.App.4th 1191, 1195.) "Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H., supra, 27 Cal.App.4th at p. 573.) Although the statutory preference is in favor of adoption, section 366.26 lists certain exceptions that may preclude termination of parental rights, if the juvenile court finds "a compelling reason for determining that termination would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The exception relevant to the instant case provides as follows: "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)(B)(i).)
The parents bear the burden of proving that this exception applies. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952-954.) "[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) For the exception to apply, the parent must have maintained regular visitation with the child, and the juvenile court must determine that the parent/child 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 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." (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) A parent must establish more than merely some benefit to the child by continuing the parent child/relationship. That relationship must be "a substantial, positive emotional attachment such that the child would be greatly harmed" if the relationship were severed. (Ibid.) To overcome the benefits associated with a stable, adoptive family, the parent seeking to continue a relationship with the child must prove that severing the relationship will cause not merely some harm, but great harm to the child. (In re Brittany C. (1999) 76 Cal.App.4th 847, 853.) Factors that the juvenile court should consider when making this determination include "[t]he 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 . . . ." (In re Autumn H., supra, 27 Cal.App.4th at p. 576.)
The juvenile court in the instant case found there was no bond between minor and her parents. Substantial evidence supports that finding. During the six months preceding the section 366.26 hearing, the parents missed nearly half of the scheduled visits with minor. They had no visits in September and October 2008 because father insisted that the only day he could visit was the one day the foster family agency could not monitor the visit. Many of the parents' visits were disrupted by father's angry outbursts. After an angry outburst by father during a July 2008 visit, minor told the social worker that she did not want to visit with her parents the following week. Beginning in April 2008, minor refused telephone calls and visits with her parents, refusing even to get into the car of the foster family social worker to be transported to visits. The agency had refused to monitor father's visits without the presence of security.
Minor was bonded with her foster family, with whom she had been placed for more than two and half years. The foster parents were willing to adopt minor, and minor wished to be adopted. Substantial evidence supports the juvenile court's determination that mother failed to establish a beneficial relationship with minor that precluded termination of parental rights in this case.
The order is affirmed.
BOREN, P. J.