In re Le.B. CA4/1 ( 2014 )

Filed 9/22/14 In re Le.B. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re LE.B., a Person Coming Under the
Juvenile Court Law.
D065371
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
(Super. Ct. No. J518352)
Plaintiff and Respondent,
v.
L.B. et al.,
Defendants and Appellants.
APPEALS from orders of the Superior Court of San Diego County, Kimberlee A.
Lagotta, Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant L.B.
Christopher Blake, under appointment by the Court of Appeal, for Defendant and
Appellant Tamika B.
Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Carra L. Rhamy, Deputy County Counsel, for Plaintiff and Respondent.
L.B. and Tamika B. appeal the juvenile court's orders terminating their parental
rights to their minor son Le.B. L.B. contends the court erred by finding the beneficial
parent-child relationship exception did not apply to preclude terminating his parental
rights. Additionally, L.B. and Tamika contend the court erred by failing to provide notice
of the proceedings to the Bureau of Indian Affairs (BIA). We affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2012, L.B. was stopped crossing into the United States from Mexico
at the border with two-year-old Le.B. in the car. L.B. was arrested when agents found
more than 28 pounds of methamphetamine in his car with an estimated street value of
almost $400,000. As a result, Le.B. was taken into protective custody by the San Diego
County Health and Human Services Agency (Agency). After L.B.'s arrest, a border
patrol agent contacted Tamika, who was living in Washington State at the time, and
Tamika immediately drove to San Diego.
When Tamika arrived she was interviewed by an Agency social worker. Tamika
reported she and L.B. were married, but L.B. had been living in Long Beach, California,
with Le.B. for the past few months. Tamika told the social worker she had been abused
by L.B. in the presence of Le.B. She also reported she suffered from significant mental
illness, but was not currently under the care of a psychiatrist or therapist. Tamika said
she knew L.B. was traveling across the border frequently with Le.B., but denied any
awareness of illegal activity and saw no risk to Le.B. from L.B.'s conduct. L.B. was also
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interviewed by the Agency's social worker. He claimed he did not know drugs were in
his car when he was arrested, but admitted to a lengthy criminal history that included
arrests for attempted murder and kidnapping.
The Agency determined Tamika could not safely care for Le.B. and filed a petition
in the juvenile court under Welfare and Institutions Code section 300, subdivision (b) 1
alleging Le.B. was at substantial risk of harm. The juvenile court sustained the
allegations of the petition at the detention hearing and at the subsequent contested
disposition hearing, declared Le.B. a dependant, removed him from parental custody and
ordered reunification services for both parents. The court ordered Le.B. placed in a
confidential licensed foster home.
In their initial interviews with the Agency's social worker, both parents denied any
Native American heritage. A few weeks later, however, L.B. reported a family
connection to the Blackfoot Tribe. The juvenile court set a special hearing to address the
potential application of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).
In response to L.B.'s statement, the Agency's ICWA specialist conducted interviews with
L.B.'s mother and her cousin. Neither woman knew of any family member who was an
enrolled member of a Native American tribe or that lived on a reservation. No one in the
family ever received benefits from a tribe, spoke a native tribal language or participated
in tribal political activities. L.B.'s mother stated that she may have been to a pow wow in
Chicago when she was nine, but had not participated in any tribal cultural or religious
1 All statutory references are to the Welfare and Institutions Code.
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activities since. Based on the two interviews, the ICWA specialist concluded L.B. had no
other family members who could provide information about possible Native American
heritage. The Agency submitted the findings of the ICWA specialist to the court and,
based on those findings, the court concluded at the special hearing that ICWA was not
applicable.
At the time of the six-month review hearing, Tamika was still living in
Washington and had only recently begun engaging in the services required by her case
plan. L.B. remained in federal custody and was awaiting trial. The Agency reported
Le.B. was happy with his foster family. Le.B. had regular visitation with L.B. in prison
and occasionally spoke with his parents on the phone.2 The Agency reported L.B. was
appropriate and attentive to Le.B. during visits. At the six-month review hearing, the
court continued reunification services for both parents.
By the time of the 12-month review hearing, L.B. had been convicted of drug
trafficking and was awaiting sentencing. L.B. continued regular visits with Le.B. and the
interactions continued to be positive. On at least one occasion, Le.B. was upset when the
visit ended. Tamika moved back to San Diego and began visitation with Le.B. She also
enrolled in services required by her case plan, including individual therapy and domestic
violence classes. Before the 12-month review hearing, the Agency received the results of
Tamika's psychological examination, which it had previously requested. The report
indicated Tamika suffered from posttraumatic stress and borderline personality disorders.
2 Le.B. was placed with a foster family whose primary language was Spanish. Both
parents complained phone contact was difficult because of the language barrier.
4
In its report for the hearing, the Agency recommended services be terminated for
both parents. In support of this recommendation, the Agency relied on the reporting
psychologist's statement that it would take five years of intensive therapy for Tamika to
improve her mental health enough to care for Le.B. The parents contested the Agency's
recommendations, arguing reasonable services had not been provided. At the conclusion
of the contested hearing, the juvenile court found the Agency had provided reasonable
services to both parents and it was not likely Le.B. would be returned to their care by 18
months. The court terminated services and set the permanency planning hearing.
Le.B. was placed in a new foster home with a family that wanted to adopt him if
L.B. and Tamika's parental rights were terminated. Le.B. was thriving in his new home
and his foster parents saw improvements in behavioral issues. By the time of the section
366.26 hearing, L.B. had been sentenced to nine years in federal prison and transferred to
an Oregon facility. He continued to have telephonic visitation with Le.B. after his
transfer. However, Le.B.'s foster mother had difficulty persuading Le.B., who was now
four and a half years old, to talk to L.B.
At the contested section 366.26 hearing, the court heard the testimony of both
parents, the prospective adoptive mother, the family's social worker and an Agency
worker that transported Le.B. to and supervised visits with L.B. in prison. After
considering the evidence and arguments of counsel, the juvenile court found Le.B. was
generally and specifically adoptable and that neither parent had shown the beneficial
parental or sibling relationship exception to adoption was applicable. The court
terminated parental rights and referred Le.B. for adoptive placement.
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DISCUSSION
I
Both parents contend the juvenile court erred by not complying with the notice
requirements of ICWA. They argue notice of the proceedings should have been sent to
the Blackfoot Tribe and the BIA.
A
"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 Shane G. (2008) 166 Cal. App. 4th 1532, 1538
(Shane G.).) An Indian child is defined as any unmarried person who is under age 18 and
is either (a) a member of an Indian tribe, or (b) eligible for membership in an Indian tribe
and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)
ICWA imposes a duty to give the child's tribe notice of the pending proceedings
and provides the tribe a right to intervene "[w]hen a court 'knows or has reason to know
that an Indian child is involved' in a juvenile dependency proceeding." (Shane G., supra,
166 Cal.App.4th at p. 1538; § 224.2, subd. (a).) "Alternatively, if there is insufficient
reason to believe a child is an Indian child, notice need not be given." (Shane G., at
p. 1538.) Notice requirements are meant to ensure that the child's Indian tribe will have
the opportunity to intervene and assert its rights in the proceedings. (In re Kahlen W.
(1991) 233 Cal. App. 3d 1414, 1421.)
Section 224.3, subdivision (a) imposes an "affirmative and continuing duty" on the
court and the Agency "to inquire whether a child for whom a petition . . . is to be, or has
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been, filed is or may be an Indian child in all dependency proceedings . . . ." Subdivision
(b) states circumstances that may provide reason to know the child is a Native American
child include the following: "(1) A person having an interest in the child . . . provides
information suggesting the child is a member of a tribe or eligible for membership in a
tribe or one or more of the child's biological parents, grandparents, or great-grandparents
are or were a member of a tribe. (2) The residence or domicile of the child, the child's
parents, or Indian custodian is in a predominantly Indian community. (3) 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."
(See also Cal. Rules of Court, rule 5.481(a)(5).)
If these or other circumstances indicate a child may be a Native American child,
the social worker must further inquire regarding the child's status. Further inquiry
includes interviewing the parents, extended family members or any other person who can
reasonably be expected to have information concerning the child's membership status or
eligibility. (§ 224.3, subd. (c).) If the inquiry leads the social worker or the court to
know or have reason to know a Native American child is involved, the social worker
must provide notice to the tribe and the BIA. (Id., subd. (d); Shane G., supra, 166
Cal.App.4th at pp. 1538-1539.) More than a bare suggestion of Native American
ancestry is needed before notice is required. (In re Jeremiah G. (2009) 172 Cal. App. 4th
1514, 1520.)
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B
Proper inquiry was conducted to determine whether Le.B. was a Native American
child within the meaning of ICWA. Social workers asked both parents whether they had
possible Indian heritage. After initially denying Native American heritage, L.B. reported
his family had "a connection with [the] Blackfoot Tribe." The Agency's ICWA specialist
then conducted interviews of L.B.'s mother and her cousin concerning the family's Native
American heritage. According to these relatives, no family members had ever been
registered or eligible for enrollment with a tribe. No family members spoke a Native
American language, attended a Native American school, received services from a tribe,
or lived on a reservation. Aside from his mother's uncertain recollection of attending a
pow wow, no family member participated in Native American cultural or political
affairs.3
The interviews conducted by the Agency's ICWA specialist fulfilled the Agency's
and court's duty to inquire into the possibility Le.B. was a Native American child.
(§ 224.3, subd. (a).) The specialist's inquiry did not uncover any reason to believe Le.B.
was a Native American child. (§ 224.3, subd. (b).) On this record, the court was not
required to provide ICWA notice.4 (§ 224.3, subd. (d); Shane G., supra, 166
3 Tamika argues the Agency should have also interviewed L.B.'s paternal relatives.
Nothing in the record, however, suggests Native American heritage on L.B.'s father's side
and the Agency's ICWA specialist determined L.B. had no other relatives with
information about the family's possible Native American heritage.
4 Tamika also complains (1) that the form used in juvenile dependency proceedings
to document a claim of Native American heritage was not obtained from L.B. and (2) that
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Cal.App.4th at p. 1539 [an attenuated, speculative or vague claim of Indian heritage is
insufficient to trigger notice requirements under ICWA].) "Where, as here, the record is
devoid of any evidence a child is an Indian child, reversing the judgment terminating
parental rights for the sole purpose of sending notice to the tribe would serve only to
delay permanency for a child . . . rather than further the important goals of and ensure the
procedural safeguards intended by ICWA." (Shane G., at p. 1539.)
II
L.B. argues insufficient evidence supported the juvenile court's finding that the
parent-child relationship exception to adoption did not apply. L.B. asserts he maintained
regular visitation and contact with Le.B. and had a beneficial parental relationship that
outweighed the benefits of adoption.
A
After reunification services are terminated, the focus of a dependency proceeding
shifts from preserving the family to promoting the best interests of the child, including
the child's interest in a stable, permanent placement that allows the caregiver to make a
full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal. App. 4th
529, 534.) At the selection and implementation hearing, the court has three options:
she and L.B. were not present at the special hearing set to address the application of
ICWA. In light of the Agency's investigation, the lack of the form is immaterial. With
respect to the parents' presence at the hearing, the record indicates counsel for both
parents were present and did not raise any objection to the court's finding that ICWA was
not applicable.
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(1) terminate parental rights and order adoption as the permanent plan; (2) appoint a legal
guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)
"Adoption, where possible, is the permanent plan preferred by the Legislature."
(In re Autumn H. (1994) 27 Cal. App. 4th 567, 573.) If the court finds a child cannot be
returned to his or her parent and is likely to be adopted if parental rights are terminated, it
must select adoption as the permanent plan unless it finds termination of parental rights
would be detrimental to the child under one of the specified statutory exceptions.
(§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Erik P. (2002) 104 Cal. App. 4th 395, 401.)
"The parent has the burden of establishing the existence of any circumstance that
constitutes an exception to termination of parental rights." (In re T.S. (2009) 175
Cal. App. 4th 1031, 1039.) Because a selection and implementation hearing occurs "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." (In re Jasmine D. (2000) 78
Cal. App. 4th 1339, 1350.)
Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption
preference if termination of parental rights would be detrimental to the child because
"[t]he parents have maintained regular visitation and contact with the child and the child
would benefit from continuing the relationship." Courts 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
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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; accord, In re Jason J.
(2009) 175 Cal. App. 4th 922, 936.)
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, 826-827.) 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 that if severed would result in harm to the
child. (Id. at p. 827; In re Elizabeth M. (1997) 52 Cal. App. 4th 318, 324.) The exception
does not require proof the child has a " 'primary attachment' " to the parent or the parent
has maintained day-to-day contact with the child. (In re S.B. (2008) 164 Cal. App. 4th
289, 299; In re Brandon C. (1999) 71 Cal. App. 4th 1530, 1534-1538; In re Casey D.
(1999) 70 Cal. App. 4th 38, 51.)
We review an order terminating parental rights for substantial evidence. (In re
Autumn H., supra, 27 Cal.App.4th at p. 576.) If, on the entire record, there is substantial
evidence to support the findings of the juvenile court, we uphold those findings. We do
not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or
weigh the evidence. Instead, we draw all reasonable inferences in support of the
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findings, view the record favorably to the juvenile court's order and affirm the order even
if there is substantial evidence supporting 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 parent
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.)
B
L.B. contends his rights should not have been terminated because he maintained
regular visitation and Le.B. would benefit from a continued relationship with him. The
juvenile court's finding that the potential harm to Le.B. of terminating parental rights did
not outweigh the potential benefits of adoption, however, was supported by substantial
evidence.
L.B. argues he did everything possible to maintain his parental role in Le.B.'s life
given his incarceration. Indeed, the juvenile court found L.B. maintained regular
visitation with Le.B. until he was convicted and transferred to a prison outside of San
Diego, and that L.B. loved and cared for Le.B. These facts, however, do not show L.B.'s
bond with Le.B. was so significant that it outweighed the benefits to Le.B. of adoption.
By the time of the permanency planning hearing, Le.B. was in his third foster home and
had been out of his parents care for close to two years. As discussed, Le.B.'s visits with
L.B. were generally positive and Le.B. enjoyed his time with L.B. As L.B. points out, at
the beginning of L.B.'s incarceration, there was at least one visit when Le.B. had
difficulty separating from his father. By the time of the section 366.26 hearing, however,
Le.B. did not ask to see L.B. between visits and had to be coaxed to speak with L.B. on
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the phone. There was no evidence Le.B. was adversely affected by L.B.'s absence from
his daily life.
"A biological parent who has failed to reunify with an adoptable child may not
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
Angel B. (2002) 97 Cal. App. 4th 454, 466.) Although L.B. cared about and expressed his
love for Le.B., this was not enough to show he had a " 'significant, positive, emotional
attachment' " such that terminating the parent-child relationship would greatly harm Le.B.
(In re Jason J., supra, 175 Cal.App.4th at pp. 936, 937-938; In re Autumn H., supra, 27
Cal.App.4th at p. 575.)
Further, the evidence supported the court's finding that the benefits of adoption
outweighed the benefits of maintaining the parent-child relationship. Le.B. was living in
the home of caregivers who were committed to adopting him. He looked to these
caregivers to meet his physical, emotional and psychological needs. In the social
worker's opinion, the minor's need for stability, safety and permanency outweighed any
possible detriment that would be caused by severing the parental relationship. The court
was required to, and did, weigh the strength and quality of the parent-child relationship,
and the detriment involved in terminating it, against the potential benefit of an adoptive
home. We do not reweigh the evidence or substitute our judgment for that of the juvenile
court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Substantial evidence
supports the court's finding the beneficial parent-child relationship exception did not
apply to preclude terminating parental rights.
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DISPOSITION
The orders are affirmed.
MCCONNELL, P. J.
WE CONCUR:
HUFFMAN, J.
NARES, J.
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