In re Audrey H. CA2/5

Filed 7/15/14 In re Audrey H. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re AUDREY H., a Person Coming B253163
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK79875)

LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,

Plaintiff and Respondent,

v.

CYNTHIA M. et al.,

Defendants and Appellants.

APPEAL from orders of the Superior Court of Los Angeles County, Jacqueline
Lewis, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.
Donna Balderston Kaiser, under appointment by the Court of Appeal, for
Defendant and Appellant Cynthia M.
Eva Chick, under appointment by the Court of Appeal, for Defendant and
Appellant R.H.
John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel and
Kim Nemoy, Deputy County Counsel for Plaintiff and Respondent.
 I. INTRODUCTION

This case began as a dependency matter in Riverside County Juvenile Court. It
was processed by the Riverside County authorities and later transferred to Los Angeles
County. R.H., the father, and Cynthia M., the mother, appeal from the Los Angeles
County Juvenile Court’s order terminating parental rights as to the child, Audrey H. The
parents contend the Department of Children and Family Services (the department) failed
to demonstrate the child was adoptable under Welfare and Institutions Code section
366.26.1 The father also argues the parental relationship exception to adoption applied.
The parents finally contend inadequate notice was provided as required under the Indian
Child Welfare Act. We affirm the orders under review.

II. BACKGROUND

A. Procedural Background

On October 26, 2009, the Riverside County Department of Public Social Services-
Child Protective Services filed a dependency petition with the juvenile court in that
county concerning the child. The petition alleges the child was at a substantial risk of
serious physical harm under section 300, subdivision (b). The petition alleges:
Cynthia M. abused alcohol and was found intoxicated by Inglewood law enforcement
personnel at a train station; Cynthia M. left the child, who was one-year old at the time,
alone in a hotel room; Cynthia M. knew or should have known R.H. had a cognitive
deficiency and could not provide regular care for the child; the parents kept their home
unsanitary and allowed individuals with criminal arrests to reside in their residence with
access to the child; R.H. allegedly knew or should have reasonably known Cynthia M.

1
Further statutory references are to the Welfare and Institutions Code.

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was abusing a controlled substance while supervising the child and failed to intervene;
and R.H. also allegedly abused marijuana which placed the child at risk of harm.
On October 27, 2009, at the detention hearing, the Riverside County Juvenile
Court found probable cause to detain the child. The child was temporarily placed with
the Riverside County Child Protective Services agency. The Riverside County agency
was ordered to investigate possible Indian Child Welfare Act issues.
On November 24, 2009, the Riverside County authorities filed a first amended
petition. The Riverside County authorities added the allegation that Cynthia M. and R.H.
engaged in domestic violence. The last incident allegedly occurred on November 2,
2009, and resulted in R.H.’s arrest.
A jurisdiction hearing was held on December 2, 2009. The Riverside County
Juvenile Court found the child was a minor within the meaning of section 300,
subdivision (b) and continued custody was necessary. Reunification services were
ordered provided to both parents. The Riverside County Juvenile Court found proper
notice was provided under the Indian Child Welfare Act. The Riverside County Juvenile
Court struck the allegations concerning: R.H.’s cognitive deficiency; individuals with
criminal arrests having access to the child; and R.H.’s marijuana abuse.
A status review hearing was held on June 2, 2010. The Riverside County Juvenile
Court ruled: the Indian Child Welfare Act did not apply to the child; continued
jurisdiction and placement in a relative’s care was necessary; and the parents’ progress
with the reunification plans was unsatisfactory. However, the Riverside County Juvenile
Court found a substantial probability that the child would be returned to the parents, and
thus ordered reunification services to continue.
On July 30, 2010, the Los Angeles County Juvenile Court accepted jurisdiction. 2
On December 1, 2010, another status review hearing was held. The court again found
continued jurisdiction necessary. The court found the parents’ progress to alleviate the

2
Further references to the juvenile court are to Los Angeles proceedings, unless
otherwise noted.

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causes necessitating foster care was only partial. During a status review hearing on April
26, 2011, the juvenile court continued the matter to June 20, 2011.
On June 21, 2011, the juvenile court held a permanent plan hearing. The juvenile
court concluded there was not a substantial probability the child would be returned to her
parents’ custody. The juvenile court terminated family reunification services and set the
matter for a section 366.26 hearing on October 18, 2011. The section 366.26 hearing was
continued from October 18, 2011 to January 24, 2012. On January 24, a permanent plan
hearing was set for February 24, 2012, pending a home study. During the February 24,
2012 hearing, the juvenile court found the parents’ progress to alleviate the causes
necessitating foster care was minimal. On June 22, 2012, the juvenile court again
continued the section 366.26 hearing pending completion of a home study.
On August 21, 2012, the juvenile court ordered the child detained in shelter care.
On September 21, 2012, the juvenile court granted Cynthia M.’s section 388 motion and
awarded her six more months of reunification services. On October 19, 2012, the
juvenile court held a progress hearing and continued the matter to March 22, 2013 for a
contested permanency plan review hearing. On March 22, 2013, the juvenile court
continued the matter to April 24, 2013. On April 24 and 30 2013, permanency planning
hearings were held. On May 7, 2013, the juvenile court terminated reunification services
for the mother and set the matter for a section 366.26 hearing.
On September 4, 2013, R.H. was found to be the presumed father. On October 30,
2013, the juvenile court held the section 366.26 hearing. The juvenile court terminated
the parents’ parental rights. The juvenile court found the child was adoptable and
selected the permanent plan of adoption. Both parents subsequently appealed.

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 B. Factual Background

1. October 27, 2009 Riverside County detention report

Riverside County Department of Public Social Services Social Worker Denise
Moore wrote that on October 20, 2009, Inglewood police generated a referral regarding
general neglect and caretaker absence. The police responded to a call indicating
Cynthia M. was drunk, raped and dressed only in a T-shirt and panties near a Metro
station. Cynthia M. was driven to Centinela Hospital by sheriffs. Cynthia M. denied she
was sexually assaulted. However, the mother stated the child had been left at a hotel
room. Inglewood police attempted to find the child. But Cynthia M. and a friend would
not provide the correct information as to the child’s whereabouts. A review of
surveillance videotape indicated another woman had taken the child from the hotel. The
police later learned the paternal grandmother had taken the child to her house. R.H. later
came and picked up the child at the grandmother’s house. Cynthia M. was arrested for
child abandonment. The mother had an extensive criminal history as a juvenile,
including battery and burglary charges.
The father initially agreed to bring the child to the police station so she could be
seen. The police determined the father had a criminal history as a minor. This included
charges for battery, deadly weapon, false imprisonment, sodomy, sex with a minor,
criminal threats, and rape. The father later informed the officers he would not bring the
child to the station because he was tired.
On October 22, 2009, Ms. Moore was informed by the Corona police that several
members of the parents’ household were on probation. Ms. Moore went to the home
accompanied by the police. R.H. was present and informed Ms. Moore the child was
with the paternal grandmother. Ms. Moore walked through the house which was in a
deplorable condition. Clothes and trash was scattered throughout the heavily stained
floors and old food was in the kitchen area. R.H. agreed to have his mother bring the
child by the house.

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 Ms. Moore returned to the house that day. R.H. stated Cynthia M. had a drinking
problem. He stated Cynthia M. will drink until she passes out. He denied domestic
violence had occurred. R.H. minimized his prior sexual assault record claiming it was
caused by an angry ex-girlfriend from a few years ago. He agreed to a drug test before
law enforcement which came back positive for marijuana. He contested the results. The
paternal grandmother informed the social worker that R.H. was developmentally delayed
and had dyslexia and poor anger management skills.
On October 22, 2009, Ms. Moore spoke with Cynthia M. The mother admitted to
drinking vodka that night but believed someone may have drugged her. The mother
denied using any drugs since the child was born. The mother: admitted to having an
alcohol problem and would seek treatment; admitted to her criminal history as a juvenile;
denied any domestic violence occurred between her and R.H; and stated she does not
work and goes back and forth between Corona and Los Angeles. Cynthia M. is the
child’s biological mother. Both Cynthia M. and R.H. state he is the child’s biological
father.

2. November 25, 2009 jurisdiction report

The jurisdiction report was prepared by another Riverside County social worker,
Cynthia Richardson. Cynthia M. denied having Native American ancestry or tribal
affiliation in her family. R.H. stated he did have Native American ancestry with a
possible Blackfoot tribal connection. The Indian Child Welfare Act noticing clerk mailed
notices with return receipt requested to the Blackfeet Tribe, the interior department, and
the parents.
Ms. Richardson noted a prior alleged criminal incident occurred at the home
where the child lived with R.H. On August 30, 2009, an unidentified family member in
the home allegedly kidnapped his girlfriend. Also, their mutual child was kidnapped.
The unidentified family member drove them to the home. According to Ms. Richardson:
“In front of [the child], her father, her mother and the paternal grandparents, the paternal

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relative threatened to kill his child and held a knife to the mother’s neck and threatened to
kill her also. The relative fled before law enforcement arrived . . . .”
On November 3, 2009, Ms. Richardson initially contacted Cynthia M. Cynthia M.
stated R.H. had lured her to his home the day before. R.H. promised a visit with the
child. He dragged her into the home and threatened her. Cynthia M. stated a friend
called the police. According to Cynthia M., she was only able to leave after they arrived.
On November 5, 2009, Cynthia M. left a message with Ms. Richardson. Cynthia M. said
she could not meet because R.H. had verbally threatened her.
On November 10, 2009, R.H. was interviewed. He had known Cynthia M. for
seven years and they have problems in their relationship. He did not consider their
relationship had domestic violence but admitted there was a little yelling. R.H. admitted
he was arrested for juvenile battery of his ex-girlfriend. R.H. denied using controlled
substances ever since he started training as a boxer two years prior. R.H. explained that
Cynthia M. would drink every day to get drunk. He did not believe Cynthia M. drank
during her pregnancy. R.H. denied being cognitively deficient. He stated he had special
glasses for his dyslexia and had taken special education classes because of his behavior.
He stated he had graduated from high school and Cynthia M. had distorted his issues.
R.H. denied his home was dirty as was reported. He stated it was cleaned three or
four times a week. R.H. stated the report of persons with criminal records residing in the
house concerned a brother. R.H. asserted the brother had moved to Los Angeles. R.H.
stated he did not use marijuana, but was around it at his gym.
Ms. Richardson also interviewed E.H., R.H.’s mother. E.H. stated she had taken
Cynthia M. to the train station in the afternoon. E.H. denied R.H. had a cognitive
deficiency and was unable to care for the child. She did not consider the home to be
unsanitary. E.H. stated R.H. lived with the paternal grandfather and a brother. E.H.
believed R.H. did not know how bad Cynthia M.’s drinking problem was. She denied
R.H. used marijuana.
On November 19, 2009, Ms. Richardson spoke with the foster mother whose
identity remained confidential. The foster mother said the child was eager to interact

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with R.H. R.H. was described as a “hands on” father and appeared to know the child’s
likes and dislikes. Cynthia M. was described as distracted when interacting with the
child. Cynthia M. was looking at the clock and did not appear fully engaged with the
child. The child was often reluctant or hesitant to go to Cynthia M. During the last visit,
the foster mother reported that Cynthia M. arrived unkempt and struggled to keep up with
the child’s activity. Cynthia M.’s friends came to the office window to signal her. The
foster mother described them as Cynthia M.’s “‘party kind of friends.’”
The paternal grandmother, E.H., expressed interest in caring for the child. She has
a prior child social welfare and criminal history. Cynthia M.’s mother had numerous
referrals and her case history would not qualify her for placement. J.H., E.H.’s father,
would not be appropriate for placement because of numerous police contacts and criminal
history of family members. Cynthia M. was referred by Ms. Richardson to parenting and
anger management classes, individual counseling, random narcotic testing and a drug
treatment program. Also, R.H. was referred to parenting and anger management classes,
individual counseling, and random drug testing.

3. May 20, 2010 status review report

A Riverside County social worker, Anita Castro, reported the child had been
placed with E.H. on April 20, 2010. On November 20, 2009, the social worker received a
letter from the Blackfeet Tribe in Montana. The Blackfeet Tribe family advocate
indicated that after researching the tribal enrollment, the child was not an Indian child as
defined by the Indian Child Welfare Act. The letter was forwarded to the Indian Child
Welfare Act noticing clerk and filed with the Riverside County Juvenile Court.
Ms. Castro’s interviewed the mother. Ms. Castro wrote: “[Cynthia M.] reports
that she is living in central Los Angeles, with the maternal grandmother, [A.M.]. Also,
living in the home are [Cynthia M.’s] siblings, [I.M.] and [J.M.], [half-sibling, P.D.] and
the maternal grandmother’s significant other, [P.D.]. [Cynthia M.] reports that although
her permanent residence is with her mother that she also occasionally stays with her

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maternal [great-grandmother, C.V.]. [Cynthia M.] is currently unemployed and reports
she is being assisted financially by her mother and grandmother, who provide her with
housing, food, and bus/train fares.” In a separate interview, A.M. confirmed
Cynthia M.’s financial situation. The mother blamed her inability to find a job on being
in this country in violation of the immigration laws and not having a high school diploma
or general equivalency degree. Cynthia M. stated that the child endangerment charges
against her had been dropped.
Cynthia M. reported several incidents of domestic abuse committed by R.H.
against her. Prior to Cynthia M. becoming pregnant, R.H. became more aggressive and
jealous and less tolerant of her tendency to be friendly and “party” with her friends.
Cynthia M. stated R.H. would hit her on her face, arms and torso, frequently with closed
fists. R.H. would regularly cause Cynthia M. to have black eyes. Cynthia M. indicated
she was beaten at least once a week. R.H. once shoved the paternal grandfather to the
ground. R.H. then choked the paternal grandfather. R.H.’s family members were aware
he frequently hit Cynthia M. and threatened her but they never intervened. Disputes
between R.H. and Cynthia M. were centered around the child because Cynthia M. wanted
to take the youngster to Los Angeles.
Cynthia M. said she was afraid to call the police. She would make up stories
about falling down when asked about her injuries. Cynthia M. said she felt powerless
against R.H. She was adamant that she never recanted any domestic violence allegation.
R.H. was frequently angered by Cynthia M.’s overly friendly gestures with other males.
A.M., Cynthia M.’s mother, spoke about the domestic violence issue. A.M. told
Cynthia M. to tell the police about the domestic violence issues and to take the child
away.
Ms. Castro met with Cynthia M. on April 22, 2010. Homeboy Industries was the
service provider for Cynthia M. Cynthia M.’s mother’s home was observed to be neat
and clean. The home was located in an inner city neighborhood with blight and
deterioration. Cynthia M. was well-known at Homeboy Industries and open to discussing
her personal life with others. Concerning Cynthia M.’s participation in services, Ms.

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Castro contacted Homeboy Industries on April 22, 2010. Cynthia M.’s substance abuse
counselor, Juan Carlos Zamudio, confirmed she started attending the substance abuse
program and appeared motivated. Regarding parental education and domestic violence,
Cynthia M. failed to appear for her initial appointment for December 11, 2009. She
appeared for a scheduled intake assessment on December 30, 2009. Ms. Jennifer
Escalera, the counselor, noted that Cynthia M. was unmotivated to attend treatment.
R.H. continued to reside with the paternal grandfather, J.H., and younger brother,
S.H. R.H.’s sole income source came from being a professional boxer. He denied using
controlled substances because he was drug tested frequently as a boxer. R.H. had
recently been placed on probation for 36 months because of traffic violations. R.H.’s
driver’s license was suspended.
On May 13, 2010, two Riverside County social workers arrived unannounced at
R.H.’s Corona home. The social workers saw at least eight holes in the walls and
bedroom doors caused by kicking or punching. One of R.H.’s relatives claimed the holes
were there when they moved in. The home was somewhat messy but otherwise fairly
typical of a residence of three men.
R.H. was referred to the Community Access Network for parental education. The
instructor sent an April 15, 2010 notice to Ms. Castro. R.H.’s participation level was
moderate in that he had some participation in group discussion. R.H. completed most of
the homework assignments and attended 11 of 14 classes. On March 6, 2010, R.H.
completed the parent education program. R.H. was also referred to the Alternative to
Domestic Violence/Coalition for Family Preservation Program. R.H. had not begun
participation in his domestic violence program. Ms. Castro contacted the program. The
intake specialist indicated R.H. had completed initial enrollment on December 29, 2009.
But R.H. failed to attend his first group session.
R.H. submitted to hair follicle testing. The test result was negative for all drug
screens. On April 6, 2010, R.H. submitted to an on-demand saliva drug test. He
admitted it might return positive for marijuana, which it did. R.H. admitted he smoked

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some marijuana several days prior and claimed it was a one-time incident. R.H. agreed to
additional random drug testing.
Cynthia M.’s visits with the child occurred at the Community Access Network in
Corona. Cynthia M. had difficulty with consistency; she frequently arrived late,
cancelled at the last minute and occasionally never showed up. Cynthia M. frequently
requested the visits be changed to different days to accommodate her transportation
problems. During the visits, Cynthia M. would occasionally be very hyperactive and talk
fast. Cynthia M. would often become quite sad. This sadness resulted from Cynthia M.
missing the child. The child was generally happy to see Cynthia M. But sometimes the
child would have to warm up to Cynthia M. The social worker observed Cynthia M. was
generally appropriate and comfortable with the child. Ms. Castro wrote, “[Cynthia M.]
was generally appropriate and comfortable in her interaction with [the child], frequently
getting physically involved in her play, reading to her and holding her in her arms and
kissing her.” Ms. Castro made these observations at visits on February 18, March 11 and
25, April 15 and 22 and May 6, 2010. During a March 11, 2010 visit, Cynthia M.’s
speech appeared somewhat slurred. After a saliva drug test, Cynthia M. tested positive
for marijuana and amphetamines.
Cynthia M. conceded during another visit on March 25, 2010, that she had been
irresponsible and inconsistent concerning the social worker’s ability to contact her.
Cynthia M. stated her marijuana and alcohol abuse was affecting the quality and
consistency of her visits with the child. After this discussion, Cynthia M.’s visits
improved. Ms. Castro took the child to a park near the Metro-Link train station in
Riverside. Cynthia M. actively engaged with the child during these visits.
R.H.’s visits occurred at the Community Access Network office in Corona. R.H.
arrived on time and never failed to keep his visits with the child. The visits were
appropriate but R.H. seemed easily distracted by text messages on his cell phone. Ms.
Castro observed during a visit that R.H. was comfortable in his interaction with the child.
He would get a book to read and hold her in his arms. He was somewhat stiff in his
interactions and admitted it was difficult to be himself while being watched.

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 The child was placed with E.H., the paternal grandmother. E.H. confirmed R.H.’s
visits were every Wednesday. E.H. would go to R.H.’s home and pick him up. R.H. was
advised that he was authorized to have liberal visitation with the child as of April 20,
2010. He stated he had not increased his visitation because of transportation problems.
R.H. was informed that this was not an excuse and public transportation was available.
R.H. indicated he would start to visit more often. Ms. Castro recommended six more
months of reunification services be provided for both parents.

4. December 1, 2010 status report

As noted, on July 30, 2010, the Los Angeles Juvenile Court accepted jurisdiction
of this case. The department social worker Angela Splane, stated the child was very
bonded with E.H., the paternal grandmother. Cynthia M. was participating in her court-
ordered programs. She randomly drug tested and all results returned negative.
According to Ms. Splane, “[Cynthia M.] is back on track at her program toward
reunifying with her daughter.” R.H. did not provide any information concerning other
programs he attended. R.H. partially complied with court orders and appeared to have no
interest in family reunification with the child. R.H. did not start his domestic violence
class. He maintained he was under the impression he no longer needed to attend because
Cynthia M. had recanted her domestic violence allegations. He did not enroll in any
domestic violence class as of December 1, 2010.

5. April 26, 2011 status report

Cynthia M. had been dismissed from her program in February 2011. Cynthia M.
had assaulted a peer. The social worker, Crystal Newsome, did not identify the program.
Cynthia M. had not visited the child since February 2011. Cynthia M. failed to appear
for a toxicology test on April 4, 2011. Cynthia M. re-enrolled in another treatment
program on April 4, 2011. R.H. continued to not attend a domestic violence class or

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individual counseling. Ms. Newsome recommended termination of parental rights
because of their partial participation in the case plan and length of time the parents had
received family reunification services. Adoption by E.H. was recommended.

6. June 20, 2011 last minute information for court document

Ms. Newsome, the social worker, reported that Cynthia M. was arrested for
“Threatening with Intent to Terrorize” on April 26, 2011 and released on May 2, 2011.
Cynthia M. asked for assistance in arranging visitation. Ms. Newsome wrote that
Cynthia M. frequently claimed to not have E.H.’s contact information to arrange for
visits. A visit occurred on June 15, 2011. Cynthia M. claimed she was late. Rather than
telephone E.H., Cynthia M. called Ms. Newsome. She continued to attend her drug
treatment program but had not submitted to narcotic testing since February 2011.

7. January 6, 2012 last minute information for court document

A new social worker, Annie Harris, indicated E.H.’s home study was put on hold.
E.H. had moved from her home and was residing with a friend. E.H. was informed she
would have to secure permanent housing before they could proceed with adoption.

8. February 24, 2012 status report

Ms. Harris wrote that the child still resided with E.H. who had moved.
The residence where E.H. and the child had previously resided was being sold.
Cynthia M. had not visited the child allegedly because E.H. had moved. According to
Ms. Harris, “[E.H.] states that the inconvenience of having to move has not affected her
in [any way] of being able to care for [the child].” The mother asserted she had enrolled
in a drug program.

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 9. July 25, 2012 last minute information for the court document

Another new social worker, Chiquita I. Evan, was unable to proceed with E.H.’s
adoption planning because of the home instability. E.H. did not have permanent housing.
E.H. reported that the foster parent stipend was her only source of income at the time.

10. July 26, 2012 status report

On July 24, 2012, E.H. stated that she would begin working and would move to
her own apartment by August 1, 2012. The child attended daycare five days a week.
Cynthia M. stated she was enrolled in a drug treatment program and had just completed a
parenting class. Cynthia M. also completed a domestic violence class. Cynthia M. gave
birth to another daughter, L.R., in June, 2012. Cynthia M. was supported by P.R., L.R.’s
father. Cynthia M. visited the child twice a month.

11. August 21, 2012 detention report

In August 2012, another social worker, Latasha Burns, learned the child was not
residing with E.H. On August 14, 2012, Ms. Burns contacted E.H.’s former roommate,
who was identified as Ms. Phillips. Ms. Phillips stated the child was “hardly” at home
and was staying with a lot of other people. Ms. Phillips stated the child had stayed
overnight with Cynthia M. several times and had also stayed with R.H. and his wife. The
child had stayed with Ms. Phillips’s daughter as well.
On August 15, 2012, the social worker informed E.H. that a visit was needed and
asked about the child’s whereabouts. E.H. had moved but failed to provide an address.
E.H. stated the child would be left with Cynthia M. in Los Angeles.
On August 16, 2012, Ms. Burns went to Cynthia M.’s home and found the child
with unknown individuals. Ms. Burns spoke with Cynthia M. Cynthia M. informed her

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that E.H. had dropped off the child that morning. The child was placed with new foster
parents, K.D. and D.D. The new foster parents were willing to adopt the child.

12. September 11, 2012 last minute information for the court document

Ms. Burns recommended Cynthia M.’s petition for a change to the order
terminating reunification services be granted. Ms. Burns found that Cynthia M. had
sufficient changed circumstances. Ms. Burns recommended additional reunification
services. The modification petition was granted.

13. October 19, 2012 interim review report

Ms. Burns stated the child had a close bond with the new foster parents and
enjoyed attending school. Cynthia M. stated she was attending drug program classes
daily. Cynthia M. had not been able to submit to random drug testing because she
allegedly lacked proper identification. Ms. Burns asked Cynthia M. to come to the office
for a photograph to be taken and a letter provided to apparently facilitate drug testing.
But Cynthia M. had not come to the office as of October 19, 2012. Cynthia M. visited
the child weekly and had appropriate visits. R.H. had no contact with the child and had
not completed the court ordered programs.

14. March 22, 2013 status review report

Ms. Burns reported the child liked going to school and playing with friends. The
new foster parents stated the child was a joy in the home. Ms. Harris also wrote: “[The
new foster parents] stated [the child] expressed that [Cynthia M.] told her that other
people wanted her, that she needed to lie and that she was going to be leaving the [new
foster parents’] home. [The new foster parents] stated [the child] then began wanting to
sleep with them and not wanting to leave their side. [The new foster parents] stated [the

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child] began asking questions if she had to leave and stating that she did not want to
leave.” The child confirmed the foster parents’ foregoing allegations. In addition,
Cynthia M. had visited the child with an unidentified male. Further, according to the new
foster parents: “[The child] also said that [Cynthia M.] told her that she will be going to
court and that she is going to tell the judge that she is going to get a big house, with a big
backyard and a lot of toys for her to play with. She stated if the judge says yes then she
can come but the judge says no then she cannot.”
The child received a psychological evaluation on January 31, 2013. The
assessment found the child would benefit from individual psychotherapy. When she was
first placed with the new foster parents, the child had difficulty at school and was prone
to hitting when angry or frustrated. However, she had now become pro-social at school
with no aggression issues reported. The assessment noted the child would occasionally
wet the bed. She would have intense reactions to water. The child began receiving
weekly counseling services through Counseling 4 Kids with a therapist, Gene Tyson.
Cynthia M. stated she completed a drug program, parenting class, and domestic
violence program. Ms. Burns told Cynthia M. that P.R. and other relatives needed to be
live scanned before visiting the child. Ms. Burns also explained it was inappropriate to
discuss the case with the child.
During monitored visits, Cynthia M. appeared to have little to no interaction with
the child. Cynthia M. began unmonitored visits on November 2, 2012, because she had
tested negative for drugs. Cynthia M. missed five visits because she forgot to confirm the
appointment. The child was happy to return to the new foster parents after the visit was
over.
Ms. Burns wrote that Cynthia M. would be unable to provide a stable home or
financial and emotional stability for the child at this time. Her sole financial support
came from her “significant other” who was not otherwise identified. Cynthia M. was also
currently raising a newborn daughter and was unable to obtain suitable housing. No
strong bond between the child and Cynthia M. was observed despite completing

16
parenting class and having 24 months of reunification services. Ms. Burns recommended
termination of family reunification services for Cynthia M.

15. April 24, 2013 interim review report

Ms. Burns related that on April 8, 2013, the child stated Cynthia M. called.
Cynthia M. had the child speak with E.H. There was a no contact order in place
regarding E.H. and the child. Cynthia M. did not consider the effects of this contact on
the child. R.H. never visited the child despite the social worker arranging for scheduled
visits. The new foster parents have an approved home study.

16. September 4, 2013 section 366.26 report

The child was developmentally normal according to Ms. Tyes. Ms. Tyson, the
therapist, saw the child on a weekly basis. Ms. Tyson noted the child identified feelings
and emotions connected with anxiety. According to the new foster parents the child
displayed heightened attachment issues after visits with Cynthia M.
The new foster mother said Cynthia M.’s visits with the child were inconsistent for
the prior several months. Cynthia M. did not contact the child telephonically.
Cynthia M. had not visited the child for three weeks. Another social worker, Chiquita
Evans, found the new foster parents would be able to provide for the child’s financial
needs. The child had only resided with Cynthia M. for one year. The child was now
four-years old. R.H. failed to inquire or be proactive regarding reunification with the
child. The department recommended termination of parental rights and that the child be
placed for adoption.

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 17. October 8, 2013 last minute information for the court document

R.H. had a one-hour monitored visit with the child on September 18, 2013. He
failed to appear the following two occasions and cancelled a third scheduled visit.
Cynthia M. failed to appear for two scheduled visits. Cynthia M. appeared for a visit on
September 25, 2013. Cynthia M. agreed to visit every Wednesday but failed to appear
for the next visit. A social worker, Michelle Aguilar, noted the child continued to present
anxiety symptoms. This included: feeling fearful about her future; excessive crying;
nightmares; nail biting; bed wetting; fear of water; and poor social and academic skills.
The child reacted strongly to inconsistent scheduled visits, by excessive crying, tantrums
and the inability to self-regulate.

18. October 30, 2013 section 366.26 hearing

It was stipulated the child knew the father as such and called him “dad” during
visits. Cynthia M. testified to having weekly monitored visits for one hour. Cynthia M.
formerly had unmonitored visits. During visits, the child would run to Cynthia M. and
say “mommy.” Cynthia M. testified the child wanted to be cuddled. Cynthia M. would
play and sing with the child during visits.

III. DISCUSSION

A. The Child Was Adoptable

The parents argue the child was not adoptable. This contention is meritless.
Adoptability focuses on whether the child’s age, physical condition and emotional state
make it difficult to find a person willing to adopt the minor. (In re Zeth S. (2003) 31
Cal.4th 396, 406; In re Michael G. (2012) 203 Cal.App.4th 580, 589.) Our Supreme
Court has stated, “All that is required is clear and convincing evidence of the likelihood

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that adoption will be realized within a reasonable time.” (In re Zeth S., supra, 31 Cal.4th
at p. 406; accord In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.) Section 366.26,
subdivision (c)(1) stresses, “The fact that the child is not yet placed in a preadoptive
home nor with a relative or foster family who is prepared to adopt the child, shall not
constitute a basis for the court to conclude that it is not likely the child will be adopted.”
If a child is generally adoptable, we do not assess the suitability of the prospective
adoptive home. (In re I.W. (2009) 180 Cal.App.4th 1517, 1526; In re Carl R. (2005) 128
Cal.App.4th 1051, 1061.) A prospective adoptive parent’s interest in adopting the child
is evidence that the minor’s age, physical condition or mental state will not discourage
others from adopting the youngster. (In re I.W., supra, 180 Cal.App.4th at p. 1526; In re
Erik P. (2002) 104 Cal.App.4th 395, 400.) We review an adoptability finding for
substantial evidence. (In re Michael G., supra, 203 Cal.App.4th at p. 589; In re Jose C.
(2010) 188 Cal.App.4th 147, 158.)
R.H. contends the evidence was not sufficient to support a finding that the child
was adoptable. R.H. argues the child’s listed symptoms reflected a youngster with
emotional and behavioral problems who may have special needs. R.H. asserts the child
may not be ready for adoption based on emotional instability. Cynthia M. joins in R.H.’s
argument.
Substantial evidence supports the juvenile court’s finding that the child was
adoptable. To begin with, no medical or psychological professional stated the youngster
is a special needs child. The child was found to have at least two families who wanted to
adopt her. The child had a stable placement with her new foster parents and was anxious
about leaving them. The child received therapy for her issues. Additionally, the new
foster parents remained interested in adopting the child despite her issues. The juvenile
court did not err by finding the child was adoptable.

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 B. R.H. Did Not Qualify For The Parental Relationship Exception

R.H. argues he qualified under the parental relationship exception to the
preference for adoption. This contention is frivolous. Section 366.26, subdivision
(c)(1)(B) states, “[T]he court shall terminate parental rights unless . . . [t]he court finds a
compelling reason for determining that termination would be detrimental to the child”
due to the existence of specified exceptional circumstances. (See In re Marcelo B. (2012)
209 Cal.App.4th 635, 642.) One such exception 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)(B)(i); see In re Marcelo B., supra, 209 Cal.App.4th
at pp. 642-643.) The burden to produce evidence is on the party seeking to establish the
existence of the statutory exception. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314;
In re Megan S. (2002) 104 Cal.App.4th 247, 252.) We review the juvenile court’s
findings concerning exceptions to adoption for substantial evidence. (In re Autumn H.
(1994) 27 Cal.App.4th 567, 576; compare In re Jasmine D. (2000) 78 Cal.App.4th 1339,
1351 [applying abuse of discretion standard].)
R.H. contends that he entered into evidence a stipulation at the October 30, 2013
section 366.26 hearing. The stipulation was that the child recognized R.H. as her father.
This stipulation fails to demonstrate that R.H. qualified for the beneficial parent
relationship. The evidence showed that prior to the child being removed from E.H.’s
custody, R.H. never progressed passed monitored visits. After the child was placed with
the new foster parents, R.H. visited his child once. To establish the parental relationship
exception: “[T]he parents must do more than demonstrate ‘frequent and loving contact’
[citation], an emotional bond with the child, or that the parents and child find their visits
pleasant. [Citation.] Rather, the parents must show that they occupy a ‘parental role’ in
the child’s life. [Citation.]” (In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108-1109;
accord, In re K.P. (2012) 203 Cal.App.4th 614, 621.)
Substantial evidence supports the juvenile court’s finding that no exception to
adoption applied. R.H. did not demonstrate he had a parental role in the child’s life.

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R.H. never progressed beyond monitored visitation which can be used as a factor against
finding the parental exception was met. (See In re K.P., supra, 203 Cal.App.4th at p.
622; In re Andrea R., supra, 75 Cal.App.4th at p. 1109.) After his child was removed
from his mother’s custody, R.H. ceased almost all contact with the child. The juvenile
court did not err by finding the beneficial parental relationship exception to adoption did
not apply to the child.

C. The Indian Child Welfare Act Notice Was Proper

Our Supreme Court has held: “[The Indian Child Welfare Act] is a federal law
giving Indian tribes concurrent jurisdiction over state court child custody proceedings
that involve Indian children living off of a reservation. [Citations.] Congress enacted
[the Indian Child Welfare Act] to further the federal policy ‘“that, where possible, an
Indian child should remain in the Indian community . . . .”’ [Citation.]” (In re W.B.
(2012) 55 Cal.4th 30, 48 [fn. omitted.]; In re D.N. (2013) 218 Cal.App.4th 1246, 1250-
1251.) Our Supreme Court has explained: “[I]f the court knows or has reason to know
that an ‘“Indian child”’ is involved in a ‘“child custody proceeding,”’ as those terms are
defined in the Act [citation], the social services agency must send notice to the child’s
parent, Indian custodian, and tribe by registered mail, with return receipt requested.
[Citation.]” (In re W.B., supra, 55 Cal.4th at p. 48; In re D.N., supra, 218 Cal.App.4th at
p. 1251; see § 224.2, subds.(a)(3) & (a)(4) [state law provision].)
Notice by the department should follow a two-step procedure. “‘First, it should
identify any possible tribal affiliations and send proper notice to those entities, return
receipt requested. [Citation.] Second, [the social services agency] should provide to the
juvenile court a copy of the notice sent and the return receipt, as well as any
correspondence received from the Indian entity relevant to the minor’s status.’” (In re
I.W., supra, 180 Cal.App.4th at p. 1529, quoting In re Marinna J. (2001) 90 Cal.App.4th
731, 739, fn. 4.) The Fifth Appellate District has held: “[I]f the identity or location of
the tribe cannot be determined, the notice shall be given to the Secretary of the Interior

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(Secretary). (25 U.S.C. § 1912(a).) The burden of identifying and providing notice to the
proper tribe then shifts to the Secretary who presumably has more resources and skill
with which to ferret out the necessary information.” (In re Desiree F. (2000) 83
Cal.App.4th 460, 469; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1422.) We review
the juvenile court’s finding whether proper notice was given under the Indian Child
Welfare Act for substantial evidence. (In re D.N., supra, 218 Cal.App.4th at p. 1251; In
re Christian P. (2012) 208 Cal.App.4th 437, 451.)
R.H. argues notice was insufficient under the Indian Child Welfare Act. R.H.
contends there is a tribe designated as “Blackfeet” which responded on November 16,
2010. However, R.H. claims he is “Blackfoot” and requires notification under both
“Blackfeet” and “Blackfoot” tribes. R.H. contends the Riverside authorities were
required to send notice to the Secretary of the Interior in Sacramento due to a potential
issue regarding the identity of the tribe. R.H. suggests that he may not actually be
descended from the Native-American tribe known as “Blackfeet.” He contends
“Blackfoot” has been associated with the Sioux or Apache tribes. Cynthia M. joins in his
argument.
This contention has no merit. The tribe determines tribal membership. (§ 224.3,
subd. (e)(1); In re Edward H. (2002) 100 Cal.App.4th 1, 4.) The Blackfeet Tribe
undisputedly found the child was not subject to the Indian Child Welfare Act. Notice
was sent by the Riverside County Child Protective Services’ staff to the Blackfeet Tribe
and the Secretary of the Interior. There is no “Blackfoot” Tribe in the federal register.
He points to no authority that requires the department to do further research or provide
further notice. R.H. raised for the first time on appeal the possibility that his “Blackfoot”
heritage claim might refer to other Native-American tribes. He never notified the
Riverside or Los Angeles child protection agencies or juvenile court of this during
dependency proceedings. There was no duty to provide notice concerning possible
Native-American heritage to these other tribes.

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 The department concedes return receipts were not provided to the juvenile court.
However, it is undisputed the Blackfeet Tribe received notice because they sent a
response. Notice was proper under the Indian Child Welfare Act.

IV. DISPOSITION

The orders terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

TURNER, P. J.

We concur:

KRIEGLER, J.

MINK, J.*

*
Retired Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.

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