Filed 2/13/14 In re I.S. CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
In re I.S., a Person Coming Under the B249551
Juvenile Court Law.
(Los Angeles County
Super. Ct. No. CK92016)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
A.S. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Los Angeles County, Annabelle G.
Cortez, Judge. Affirmed.
David A. Hamilton, under appointment by the Court of Appeal, for Defendant and
Appellant A.S.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and
Appellant R.L.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Aileen Wong, Deputy County Counsel, for Plaintiff and Respondent.
*********
A.S. (father) and R.L. (mother) appeal the order terminating their parental rights to
their son I.S., who is now three and one-half years old. Father and mother both contend
on appeal that reversal is mandated because the juvenile court failed to comply with the
notice requirements of the Indian Child Welfare Act of 1978 (ICWA). (25 U.S.C. § 1901
et seq.) Father also contends the court erred in denying his petitions pursuant to Welfare
and Institutions Code, section 388,1 arguing he demonstrated changed circumstances that
justified his request for reunification services, and that the court erred in finding the
beneficial relationship exception to termination of his parental rights did not apply.
Father also asserts a violation of fundamental federal rights. Finding no merit to father’s
or mother’s appeal, we affirm the orders.
FACTUAL AND PROCEDURAL BACKGROUND
We summarize only the facts pertinent to the issues raised by mother’s and
father’s appeals.
When he was 20 months old, I.S. came to the attention of the Los Angeles County
Department of Children and Family Services (the Department) on February 22, 2012, as a
result of the arrest of his parents. That day, the Los Angeles County Sheriff’s
Department had executed a search warrant at the family home, where law enforcement
officers found methamphetamine, marijuana, methadone and a crack pipe within reach of
I.S. under a sofa cushion where he was sleeping. The Department detained I.S. that day
and placed him with his paternal aunt.
Father has a lengthy criminal history dating back to 1981, including convictions
for grand theft, evading a police officer and driving on a suspended license, and multiple
convictions for being under the influence of controlled substances, drug possession and
drug sales. During the dependency proceedings, father negotiated a plea agreement in the
criminal case that brought I.S. to the attention of the Department, pleading no contest to
possession of a controlled substance and child endangerment. Pursuant to the plea
agreement, the criminal court sentenced father to two years in county jail. Although not
1 All further undesignated section references are to the Welfare and Institutions
Code.
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pertinent to her appeal, we note that mother was also criminally prosecuted and sentenced
to three years in county jail.
The Department filed a petition pursuant to section 300, subdivisions (b) and (j),
alleging that the parents created an endangering home environment by exposing I.S. to
illicit drugs and drug paraphenalia. At the detention hearing, mother denied any Indian
ancestry but father completed an ICWA form stating I.S. might be eligible for
membership in the Navajo tribe. The court found father was I.S.’s presumed father and
asked father about his familial membership in the Navajo tribe. As requested by the
Department, we take judicial notice of a related nonoperative writ (case No. B241624),
which includes the reporter’s transcript of the detention hearing. Father told the court he
thought I.S.’s paternal grandfather, Octaviano S., was a member of a Navajo tribe in New
Mexico, but father did not have any further identifying information about I.S.’s
grandfather. The court ordered the Department to investigate father’s American Indian
heritage and give ICWA notice.
Mother and father settled the allegations of the dependency petition in mediation,
and on May 3, 2012, the court sustained two amended counts that father and mother
created an endangering home environment by father’s possession of drugs and drug
paraphenalia and mother’s unresolved history of substance abuse. Mother and father
agreed that I.S. would remain placed with his paternal aunt.
Based on what little information father had provided, the Department served
ICWA notices. The Department mailed ICWA notices to the regional office of the
Bureau of Indian Affairs (BIA) in Sacramento, the Secretary of the United States
Department of Interior, the Navajo Regional Office of the BIA, the Ramah Navajo
Chapter in Ramah, New Mexico, the Navajo Nation in Window Rock, Arizona, and the
Colorado River Tribal Council in Parker, Arizona. The ICWA notices included accurate
identifying information regarding I.S., mother and father. The notices identified I.S.’s
paternal grandparents: as to paternal grandmother, the notices included her name, a
partial current street address, birthdate and place, and stated no Navajo membership was
claimed through her; and as to paternal grandfather, the notices included his name, that he
was born in Bernal or Bernalio, New Mexico, that he died in 1993 in New Mexico, and
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that he was a member of a Navajo tribe. The notice said his former address and birthdate
were unknown. The notices also identified I.S.’s paternal great-grandparents: as to
paternal great-grandmother, the notices included her name and that she was born, lived
and died in Santa Fe, New Mexico, stated no other information was known, and no tribal
membership was claimed as to her; and as to paternal great-grandfather, the notices
included his name, that he died in Santa Fe, New Mexico, that he was a member of a
Navajo tribe, and that no other information was known.
The Colorado River Tribal Council and the Navajo Nation responded to the ICWA
notices, stating I.S. was not eligible for enrollment and declining to intervene in the
proceedings. Neither tribe requested the Department to forward additional information.
The United States Department of Interior acknowledged the official notice received by
the BIA, and the BIA responded with a letter acknowledging receipt of the notice and
indicating no further action would be taken by BIA since the Navajo Nation had been
notified. The notices, certified mail receipts, and responses were filed with the court.
At the disposition hearing on May 23, 2012, the juvenile court found the ICWA
notices were adequate and that ICWA did not apply. The court ordered I.S. removed
from his parents and placed with his paternal aunt and ordered no reunification services
for either mother or father pursuant to section 361.5, subdivision (e)(1) since they would
remain incarcerated throughout the reunification period provided by law.
I.S.’s paternal aunt wanted to adopt him. On December 5, 2012, a home study was
completed and approved for the paternal aunt to become I.S.’s prospective adoptive
mother, in the event parental rights were terminated. About a month later, father filed a
section 388 petition stating he expected to be released from custody soon and asking the
court to provide him reunification services. The court summarily denied the petition.
Father was released from jail on February 11, 2013. In response to his request, the
Department gave father referrals to substance abuse programs. Father enrolled in a three-
to-six month residential substance abuse treatment program on February 25, 2013. On
April 10, 2013, father filed another section 388 petition seeking reunification services, on
the ground he was out of custody and enrolled in a substance abuse program, and while
incarcerated, he participated in programs available to him. Father had monitored visits
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with I.S. for two hours on March 9, for 20 minutes on March 31, and one and one-half
hours on April 7. Throughout his incarceration and upon his release, father also spoke to
the paternal aunt or to I.S. on the telephone as often as possible. The court granted a
hearing on the petition.
The court heard father’s section 388 petition and then held a section 366.26
hearing on May 13 and 15, 2013. The court received numerous reports and documents
offered by the Department and by father. The court heard the testimony of father’s drug
and alcohol counselor and his sponsor, as well as father’s testimony, concerning his
recent efforts to maintain sobriety, his own upbringing and new understanding of proper
parenting, and his twice-weekly visits with I.S. for two hours each visit. This was the
first time in 30 years that father had been in active recovery. Father did not ask for
custody of I.S. at that time and believed it was better for I.S. to remain with his paternal
aunt than in a foster home. He did not offer any new information regarding his claimed
Navajo heritage. The Department and I.S.’s counsel argued the court should deny
father’s 388 petition because of the early stage of father’s rehabilitation after a lengthy
period of drug abuse, father was not in a position to care for a three-year-old child, and
I.S. had a stable and regular schedule in the paternal aunt’s home where he had lived half
his young life and was doing well.
The juvenile court commended father for his recovery efforts but denied the
section 388 petition because father had not met his burden to demonstrate either that there
were changed circumstances or that it was in I.S.’s best interest for the court to offer
reunification services to father, since that would only disrupt the permanency available in
the paternal aunt’s home. After hearing further testimony and argument, including the
testimony of the paternal aunt that father’s visits with I.S. had been appropriate but all
had been monitored, the juvenile court found, by clear and convincing evidence, that I.S.
was adoptable and the beneficial relationship exception did not apply. The court
terminated mother’s and father’s parental rights. This appeal followed.
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DISCUSSION
1. No Reversible Error in ICWA Notices
Father and mother both contend the juvenile court and the Department failed to
discharge their continuing duty to inquire about whether I.S. was an Indian child within
the meaning of ICWA because the Department failed to interview other paternal
relatives. However, neither father nor mother offers any information that any paternal
relative has or may have any information to offer.
The notice requirements of ICWA serve the salient purpose of protecting Indian
children and providing a mechanism for the maintenance of tribal and familial ties for
those Indian children faced with the prospect of placement in the foster care system.
(25 U.S.C. § 1901; see also In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) The
threshold of information necessary to trigger ICWA notice requirements is low. (In re
Gabriel G. (2012) 206 Cal.App.4th 1160, 1165 [ICWA triggered where mother denied
heritage, but father claimed possible Cherokee tribal membership through paternal
grandfather, with no biographical data other than grandfather’s name].)
Despite the vague scraps of information father offered, the juvenile court ordered
the Department to conduct an investigation and give ICWA notice. The Department sent
ICWA notices with the limited information available to the federally recognized Navajo
tribes, the regional director of the BIA and the Secretary of the United States Department
of Interior. The notices contained the available information that was required under both
federal and state law. (See generally 25 C.F.R. § 23.11(d)(3) (2012); Welf. & Inst. Code,
§ 224.2, subd. (a).) The form of the notices complied with Welfare and Institutions Code
section 224.2, subdivision (a)(1) through (4), including certified mail service on the
appropriate tribal designees. Mother and father do not dispute that the notices duly
contained all of the required information, such as identification of the dependency
proceedings, contact information for the juvenile court, and notice of the tribes’ right to
intervene.
They nonetheless argue the Department did not fulfill its duties because the
notices did not include all of the biographical data identified in section 224.2, subdivision
(a)(5)(C). The ICWA notices contained I.S.’s name, date and place of birth, mother’s
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and father’s names, current addresses and birthdates, the paternal grandparents’ names,
and that Navajo heritage was claimed through paternal grandfather, whose place of birth
and death and year of death were provided. The notices also included the paternal great-
grandfather’s name, that he lived and died in Santa Fe, New Mexico, and that he was of
Navajo heritage. The Department correctly and truthfully stated that all other
information about the paternal grandparents and great-grandparents was unknown.
Mother and father do not claim that any information actually known to the Department
was not reported.
We review the trial court’s finding that ICWA notice was adequate for substantial
evidence. (In re J.T. (2007) 154 Cal.App.4th 986, 991.) Substantial compliance with the
notice provisions of ICWA may be sufficient in certain circumstances. (In re
Christopher I. (2003) 106 Cal.App.4th 533, 566; accord, In re I.G. (2005) 133
Cal.App.4th 1246, 1252; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) There is
no dispute the notices sent here provided to the federally recognized Navajo tribes actual
notice of the proceedings and the right to intervene. (See In re Desiree F., supra, 83
Cal.App.4th at pp. 469-470 [statute and cases applying ICWA “unequivocally require”
actual notice to the tribe of both the proceedings and of the right to intervene].)
The notices similarly contained all of the biographical data known to the
Department. Under both state and federal law, the requirement to include all specified
biographical data is limited to that information which is “known” or “available.” (See
Welf. & Inst. Code, § 224.2, subd. (a)(5)(C); 25 C.F.R. § 23.11(b), (d)(3) (2012).) “It is
essential to provide the Indian tribe with all available information about the child’s
ancestors, especially the ones with the alleged Indian heritage.” (In re Francisco W.
(2006) 139 Cal.App.4th 695, 703, italics added.)
The record supports the juvenile court’s determination that ICWA was satisfied
and does not apply in this case. This is not a case where the Department simply failed to
investigate or omitted to include information known to be available upon investigation.
(In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455 [notices that failed to contain
extensive family information which was known to social worker and included in the
dispositional report did not provide meaningful notice].) Nor is this a case like In re
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Gabriel G., where the Department failed to serve any ICWA notice at all despite the
father having identified his paternal grandfather by name as being a possible member of a
Cherokee tribe, but later ambiguously disclaimed his own possible Indian heritage, and
the record reflected no effort by the social worker to clarify the father’s claim. (In re
Gabriel G., supra, 206 Cal.App.4th at p. 1168.)
Under state law, both the juvenile court and the Department have “an affirmative
and continuing duty to inquire whether a child is or may be an Indian child in all
proceedings identified in rule 5.480.” (Cal. Rules of Court, rule 5.481(a); see also Welf.
& Inst. Code, § 224.3, subd. (a).) The continuing duty requirement is not in ICWA, but is
a duty imposed by state law that dictates a higher standard than ICWA. The “failure to
comply with a higher state standard, above and beyond what the ICWA itself requires,
must be held harmless unless the appellant can show a reasonable probability that he or
she would have enjoyed a more favorable result in the absence of the error.” (In re S.B.
(2005) 130 Cal.App.4th 1148, 1162; accord, In re H.B. (2008) 161 Cal.App.4th 115, 121-
122.)
Mother and father make no attempt to argue that additional information could be
provided in further ICWA notices. They argue the Department should have asked other
paternal relatives for more information, but they do not claim that anyone has any more
information to divulge. To this day, up through the filing of their reply briefs in this
appeal, mother and father have never disclosed any additional information that might be
included in additional ICWA notices or identified any member of father’s family who has
additional information to offer. They have therefore failed to show reversible error.
(Cal. Const., art. VI, § 13; In re N.E. (2008) 160 Cal.App.4th 766, 769; In re Rebecca R.
(2006) 143 Cal.App.4th 1426, 1430-1431.)
Father raises three additional arguments. He contends the juvenile court abused its
discretion in denying his section 388 petitions. Father further contends the court erred in
terminating his parental rights by failing to acknowledge the evidence showing the
existence of a beneficial parental-child relationship with I.S. Father also argues his
fundamental federal right to be a parent was violated. We address each of these
arguments below.
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2. No Error in Denying 388 Petitions
“For a parent ‘to revive the reunification issue,’ the parent must prove that
circumstances have changed such that reunification is in the child’s best interest.” (In re
D.R. (2011) 193 Cal.App.4th 1494, 1512.) Once reunification services to a parent have
been terminated (here, father never received reunification services due to his
incarceration throughout the reunification period provided by law), “a parent’s interest in
the care, custody and companionship of the child is no longer paramount.” (In re
Angel B. (2002) 97 Cal.App.4th 454, 464.) Instead, the court’s focus, given the stage of
the proceedings, is on the dependent child’s need for stability and permanency. (Ibid.;
see also In re Marilyn H. (1993) 5 Cal.4th 295, 309.)
The juvenile court did not abuse its discretion in finding that it was not in I.S.’s
best interest to provide reunification services to father after I.S. had been in the
dependency system for half his short life and was thriving in the care of paternal aunt.
(In re Shirley K. (2006) 140 Cal.App.4th 65, 71 [appellate court reviews the juvenile
court’s denial of a section 388 petition for abuse of discretion].) Father was in the early
stages of recovery from a 30-year drug addiction and was not in a position to take
custody of I.S. Father did what he could to acquire parenting skills, to keep up with his
son’s development through telephone conversations with paternal aunt during father’s
incarceration, and through telephone calls and monitored visits with I.S. after his release
from custody while residing in a drug treatment facility. But, to the extent the evidence
may support the inference that father has been able to form a bond with I.S., it is not
comparable to that of the paternal aunt who cared for I.S. since he was 20 months old,
loves him and is waiting to adopt him. In light of the length of dependency and I.S.’s
strong bond with paternal aunt, who he now considers his “mommy” and is the only
parent he knows, the trial court did not abuse its discretion in determining that it was not
in I.S.’s best interest to offer reunification services to father for some indefinite period of
time while he continues to rehabilitate.
3. No Error in Finding the Beneficial Relationship Does Not Apply
Father argues the juvenile court should have applied an exception under section
366.26, subdivision (c)(1)(B)(i) to termination of parental rights because, while in his
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residential drug treatment program, he has maintained regular visitation with I.S. and I.S.
would benefit from continuing the relationship.
Father argues the juvenile court should have applied an exception under section
366.26, subdivision (c)(1)(B)(i) to termination of parental rights because, while in his
residential drug treatment program, he has maintained regular visitation with I.S. and I.S.
would benefit from continuing the relationship. Father acknowledged the leading case
interpreting the beneficial relationship exception is In re Autumn H. (1994) 27
Cal.App.4th 567, 575, which held that: “[T]he ‘benefit from continuing the [parent/child]
relationship’ exception [means] the 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. 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. [¶] Interaction between natural parent and
child will always confer some incidental benefit to the child. The significant attachment
from child to parent results from the adult’s attention to the child’s needs for physical
care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises
from day-to-day interaction, companionship and shared experiences. [Citation.] The
exception applies only where the court finds regular visits and contact have continued or
developed a significant, positive, emotional attachment from child to parent.” To
establish the exception, “[a] parent must show more than frequent and loving contact or
pleasant visits.” (In re C.F. (2011) 193 Cal.App.4th 549, 555.) “The parent must show
he or she occupies a parental role in the child’s life, resulting in a significant, positive,
emotional attachment between child and parent.” (Ibid., italics added.)
Because father failed to show there was a significant emotional attachment
between him and I.S. or that he occupied a parental role in I.S.’s life, substantial evidence
supports the juvenile court’s order terminating father’s parental rights. (In re S.B. (2008)
164 Cal.App.4th 289, 298 [Court of Appeal reviews juvenile court’s finding to determine
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if supported by substantial evidence].) There was no evidence that I.S. and father
enjoyed a bond such that severance would negatively impact I.S. There was no evidence
that father had assumed a parental role or that he could assume a parental role within any
predictable timeframe. (Cf. ibid. [evidence that father who was primary caregiver for
three years supported exception to termination of parental rights].) Father is little more
than a friendly visitor to I.S. as a consequence of father’s continued pursuit of a criminal
lifestyle after his son’s birth.
4. No Violation of Fundamental Right to Parenting
Father also argues the denial of his section 388 petition and finding that the
beneficial relationship does not apply violates “fundamental federal rights” and that the
standard of Chapman v. California (1967) 386 U.S. 18 applies. Father’s argument is
flawed. First, the Chapman standard of review applies to criminal cases and has no
bearing on dependency cases. Father has failed to identify to this court any legal
authority that the section 388 petition process or the contested section 366.26 hearing
procedure somehow violates any federal constitutional right. (Cf. In re Marilyn H.,
supra, 5 Cal.4th at pp. 306-310 [finding the “ ‘escape mechanism’ ” afforded by the
section 388 petition process and the procedural protections of the dependency scheme as
a whole satisfy due process].) Indeed, there is nothing in the record indicating father was
in any way denied a fair opportunity to present any and all evidence supporting his
position.
Second, while the state may not interfere with parental rights without a compelling
state interest, the state has an overriding interest in protecting the welfare of a child.
“Although a parent’s interest in the care, custody and companionship of a child is a
liberty interest that may not be interfered with in the absence of a compelling state
interest, the welfare of a child is a compelling state interest that a state has not only a
right, but a duty, to protect. . . . This interest is a compelling one. . . . The state’s interest
requires the court to concentrate its efforts, once reunification services have been
terminated, on the child’s placement and well-being, rather than on a parent’s challenge
to a custody order.” (In re Marilyn H., supra, 5 Cal.4th at p. 307, italics added, citations
omitted.) Father has not shown the juvenile court’s orders in any way violated his rights.
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DISPOSITION
The juvenile court’s orders denying father’s section 388 petitions and terminating
parental rights are affirmed.
GRIMES, J.
We concur:
RUBIN, Acting P. J.
FLIER, J.
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