Opinion
B208128
10-23-2008
In re T.C., et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. D.C. and T.I., Defendants and Appellants.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant, D.C.; Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant, T.I. Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kristin J. Andreasen, for Plaintiff and Respondent.
Not to be Published
In this dependency case (Welf. & Inst. Code, § 300 et seq.), D.C., the mother of the minors T.H. and S.I. (Mother, T.H. and S.I, respectively), appeals from an order terminating her parental rights to those two children. T.I., father of the minor S.I. (Father), also appeals from that order insofar as it terminated his parental rights to S.I.. At issue here is the adequacy of the efforts made by the dependency court and the Los Angeles Department of Children and Family Services (the Department) with respect to compliance with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq., the ICWA). The Department is the respondent in this appeal. It concedes there is ICWA error, and it asserts there should be a limited remand for compliance with the ICWA. The parents also contend the trial court erred when it did not find that the "parental relationship" exception to termination of parental rights applies to Mothers relationship with T.H. and S.I.
Unless otherwise indicated, all references herein to statutes are to the Welfare and Institutions Code.
Our review of the record convinces us that the ICWA was not complied with. However, we do not agree that the trial court abused its discretion when it did not apply the parental relationship exception to Mothers relationship with the minors. Therefore, only a limited reversal and remand of the case to address compliance with the ICWA will be ordered.
BACKGROUND OF THE CASE
1. Original Section 300 Petition
The minors, T.H. and S.I., and their sibling J.H., were detained by the Department on September 22, 2006, because of Mothers drug use and drug history, Fathers history of substance abuse, and issues of domestic violence between Mother and Father. After detaining the minors, the Department returned T.H. to the home of Mothers sister-in-law, the minors maternal aunt by marriage (maternal aunt), where T.H. had already been living for two years pursuant to a writing whereby Mother gave the maternal aunt legal custody of T.H. S.I., who was living with Mother when the minors were detained, was placed with an extended family member with whom she had previously lived. Sibling J.H. was placed with her father.
Ultimately J.H.s dependency case was closed, her father was given sole legal and physical custody of her, and Mother was given monitored visitation. She is not involved in this appeal.
Mother was in a substance abuse program in May 2006 under Department voluntary services. She told the social worker she left the treatment program because the minor S.I. did not like being at the substance abuse facility, and because Mother did not like people telling her what to do.
T.H., who was born in February 1993, was 13 years old at the time she was detained by the Department. S.I., who was born in March 2005, was 18 months old. At the time of the detention, Mother also had an open dependency case in San Mateo County with another child, a teenage son.
At the detention hearing on September 27, 2006, the court found there was a prima facie case made that the children are persons described in section 300 and it detained them. The sibling J.H. was placed with her father. The childrens attorney indicated to the court that both T.H. and sibling J.H. wanted S.I. to live with T.H. in the home of maternal aunt. The court ruled that S.I. would be placed with the aunt so that she and T.H. could be together. The aunt told the court that she had "no problem making sure the kids get to visit the grandparents, kids, mama. Ive been doing it for years."
The jurisdiction/disposition report for a hearing on October 23, 2006 shows that Mothers four children have four different fathers, and the children have often been in the care of relatives and friends because, according to Mother, she always needed help raising her children. By the time the hearing, Mother was in an inpatient substance abuse program and having twice weekly visits with the minors. She enrolled in the program on August 25, 2006.
The social worker recommended that T.H. and S.I. be relocated from their maternal aunts home in Palmdale because it would facilitate visits and reunification with Mother, and because the childrens relatives do not get along with the maternal aunt and the constant infighting among them was not conducive to Mothers recovery. It was recommended that S.I. be placed with her paternal grandparents and T.H. remain in Palmdale until a relative in the Los Angeles area was found to care for her.
2. First Amended Section 300 Petition
A first amended section 300 petition was filed on the day set for the adjudication of the original petition, October 23, 2006. At that hearing, the court replaced S.I. to the home of her paternal grandparents and gave the Department discretion to replace T.H. to the home of an appropriate relative. The next month, Mother gave notice to the social worker that she wanted T.H. to remain in the maternal aunts home because that was where the minor "feels happy and comfortable."
At the adjudication/disposition hearing on November 13, 2006, the court sustained the following allegations in the amended petition. Mother has a history of substance abuse and Father has a history of alcohol abuse, and these matters render Mother and Father incapable of providing the minors with regular care and supervision and endanger the minors physical and emotional health and safety. On numerous prior occasions, Mother and Father engaged in physical domestic confrontations, including once when Father attempted to strike Mother with a shoe, missed, and hit S.I. in the face, and such altercations between Mother and Father endanger the minors physical and emotional health and safety. On prior occasions, T.H. was molested by Mothers adult friend and although T.H. told Mother about the molestations, Mother was not able to protect T.H., and this failure to protect endangers the minors physical and emotional health and safety.
The minors were declared dependents of the court. Custody of T.H. and S.I. (and sibling J.H.). was taken from Mother and from their respective alleged or presumed fathers. Family reunification services and monitored visitation were ordered for the parents.
At a hearing in December 2006, the court, at the request of the alleged father of T.H., vacated the order for his reunification services and stated there would be no paternity testing and the man would remain an alleged father. His activity in this case has been negligible.
Mother was ordered to attend a Department approved programs of drug rehabilitation with random testing, parenting classes, and individual counseling not limited to domestic violence and sexual abuse awareness. Father was ordered to attend Department approved individual counseling, parenting, domestic abuse, and random drug and alcohol testing, and to submit 6 clean drug and alcohol tests and if he missed any or they were dirty, he was to enroll in a full rehabilitation program.
The case was continued to December 14, 2006 for a progress hearing. The report submitted by the Department shows Mother continued to be enrolled in her inpatient substance abuse program and had been in full compliance with the program requirements until November 29, 2006, when she left the program on a day pass and did not return until the next day, at which time she tested positive for cocaine. Prior to that, her weekly drug tests were negative. But for the violation of the day pass and the positive test, she was reported to be making good progress, and her visits with the minors were reported to be good. Her projected completion date for the program was February 23, 2007, with an outpatient drug treatment program and residency in a sober living program to follow.
Father reported to the social worker that he had missed an on-demand drug test, that he had not begun his case plan, and that he had been visiting with S.I. three times a week at his parents home. However, the paternal grandparents had moved to another county and Fathers visits with S.I. had decreased.
3. Section 366.21, Subdivision (e) Six-Month Review Hearing
A six-month hearing (§ 366.21, subd. (e)) was held on May 14, 2007. The Departments report for the hearing shows that although, as noted above, Mother was projected to finish her inpatient treatment program on February 23, 2007, she dropped out of the program in January 2007 and failed to notify the Department of her whereabouts. Finally, in April 2007, the social worker was able to locate her through family members. Mother reported she was using cocaine and marijuana. She failed to keep an April 30, 2007 appointment with the social worker to address enrollment in another program. She had not completed any of the courts orders for her case plan. The childrens caretakers reported that Mother stopped visiting with the minors after she dropped out of her program. Father had failed to make any efforts to comply with his case plan, including random testing, and he reported to the social worker that he had been going in and out of jail for drug and weapons charges and parole violations.
T.H. remained placed with her maternal aunt caretaker in Palmdale and S.I. remained placed with her paternal grandmother in Riverside County. The report states the respective caretakers were providing the minors with excellent care and facilitating their sibling visits until the grandmother became ill in January 2007. T.H. was receiving counseling. She was having behavior and academic difficulties at school, which her aunt attributed to the minor experiencing trauma relating to family problems. The Department recommended that the aunt adopt T.H. T.H. indicated a strong desire to have her sibling S.I. come and live with her and be adopted by the aunt. T.H. stated she wants to grow up together with S.I. in the same home and have shared memories with S.I. rather than just have visits with her. T.H. indicated she had lost Mother and her other siblings.
The paternal grandparents reported Father would visit S.I. one to three times a week when Father was available to visit, and the visits were adequate. S.I.s paternal grandparents indicated they were willing to adopt her. The situation of the grandparents wanting to adopt S.I., and T.H. wanting S.I. to come and live with her and the maternal aunt and be adopted by the aunt, was discussed by Department adoption social workers and the social worker supervising this case, and a team decision meeting was held with the social workers, Mother, Father, the maternal aunt, paternal grandparents and T.H in attendance. The Department decided that it would be in the minors best interests to be placed together and adopted together by the maternal aunt, because siblings who live together have a stronger bond than those who do not grow up together.
The Department recommended that arrangement to the court and also recommended that Mothers and Fathers reunification services be terminated, a section 366.26 hearing be set for T.H. and S.I., and S.I. be placed in the home of the maternal aunt with T.H.
At the May 14, 2007 six-month review hearing, the minors attorney indicated she was in agreement with the recommendation of the Department that S.I.s placement be changed to have S.I. live with T.H. at the maternal aunts home. Finding that Mother and Father were not in compliance with their case plans and there was no substantial probability that the minors would be returned to the physical custody of the parents, the court terminated Mothers and Fathers reunification services and set a section 366.26 hearing for September 10, 2007. The court found that T.H. and S.I. are to be considered a sibling group and there appears to be a sibling bond. The court found that the adoption plan of the maternal aunt adopting both children appeared to be appropriate, ordered the minors to remain together, and ordered the Department would have discretion to move S.I. from the paternal grandparents home and replace her in the maternal aunts home.
On June 28, 2007, S.I. was removed from the paternal grandparents care and taken to a Department office, where she was met by the maternal aunt, T.H., and Mothers son who is the subject of a dependency case in Northern California and who was visiting the aunt. The social worker observed the children to be happy and comfortable together. The aunt stated that the sibling group would be completed when she and the children left the Departments office because she was going to pick up sibling J.H. (see fn. 2, ante), and the four children would spend a week together at her home. The aunt stated she would support facilitating visits between S.I. and the paternal grandparents, both before and after she adopted S.I. The grandparents filed a section 388 petition seeking to have S.I. returned to their care but the petition was denied as not being in the minors best interests.
4. Initial Section 366.26 Hearing
The Departments report for the initially scheduled section hearing (September 10, 2007) states that between May and September 2007, Mother had minimal contact with T.H. and S.I., and Father had no contact with S.I. because he was incarcerated, however he indicated he wanted to reunify with her. The parental grandparents had a visit with S.I. on August 25, 2007 and it was reported to go well. Their visits were scheduled for Saturdays from 10:00 a.m. to 6:00 p.m. Mother continued to be non-compliant with her case plan and out of contact with the social worker.
Adoptive home studies for both the caretaker aunt and for S.I.s paternal grandparents were pending. The record shows the caretaker aunt has a history of caring for children in need. She raised her own step-sister, was the guardian of three of her nieces, and adopted a family member when he was four years old. She wanted to adopt T.H. and S.I. together because she believes sibling relationships are important.
On September 10, 2007, the section 366.26 hearing was continued to October 23, 2007 and again to November 9, 2007.
5. November 9, 2007 Section 366.26 Hearing
Reports prepared by the Department for the November 9, 2007 section 366.26 hearing show that the adoptive home studies for the maternal aunt and the paternal grandparents were pending. The aunt opined that she wanted what was best for T.H. and S.I., and she continued to be emphatic about wanting to adopt both T.H. and S.I. so that they can grow up together. She stated that her own two children see T.H. and S.I. as their siblings. T.H. also continued to state that she wanted the aunt to adopt her and S.I. so that they can grow up together.
Reports from a community alcohol and drug treatment program for women and women with small children show that Mother enrolled there on August 29, 2007. By Mothers own admission, it is her fifth rehabilitation program. Mother stated the program is an inpatient program and before she entered the program she was homeless. She reported that she was currently six months pregnant with her fifth child and she did not know who the father of this new child is.
T.H. told the social worker she could not concentrate in school because of fear that her sister S.I. would be removed from the aunts home. The aunt reported the childs grades were effected, and the social workers visit to the minors school bore that out. Although the school year was only two months old, T.H. had been suspended twice, received two detentions, and was issued a "Saturday Work." She also had four unverified or unexcused absences. T.H. felt she could use some help with her studies, such as tutoring. Her weekly in-home counseling was ongoing. The aunt reported not noticing any change in S.I.s behavior, and that S.I. loves T.H.
The aunt stated that neither she nor S.I. and T.H. had face-to-face or telephone contact with Mother since a Team Decision Meeting in April 2007. The aunt opined that visitation between Mother and the minors does the minor more harm than good, especially for T.H., because T.H. is not able to handle Mother going in and out of her life. Mother told the social worker on November 6, 2007 that she had not had contact with S.I. and T.H. since she left her old drug treatment program, and now that she was enrolled in another program she wanted to see them weekly at the treatment center.
At the hearing, the court continued the section 366.26 matter for an Evidence Code section 730 evaluation regarding the minors relationships with each other and with their caretaker aunt (and the aunts children if necessary), and S.I.s relationship with the paternal grandparents. The evaluator was to make a recommendation regarding adoption by the aunt of the two minors, or adoption by the grandparents of only S.I., and the detriment to the children if the latter adoption is recommended, as well as a recommendation for visitation and any therapy or treatment/diagnostic procedures necessary. Dr. M. Ward was appointed as the section 730 expert.
The court stated that it continued to believe that replacing S.I. to the home of the aunt to be with T.H. was in the minors best interests, but it could foresee possible ongoing family turmoil and it had concern how that could impact the minors, and so the court wanted an independent person to make a recommendation regarding placement and visitation.
6. Dr. Wards Report
When interviewed (separately), the maternal aunts own two children described good relationships between themselves and T.H. and S.I. Both stated they were happy living with the maternal aunt and T.H. and S.I., and the aunt takes good care of all of the children. Mother also stated the maternal aunt takes good care of the children. Mother opined that T.H. and S.I. are bonded with each other and both should remain in the aunts care until Mother is doing well enough to have them replaced to her care. Both she and Father indicated a desire to be reunited with their child(ren).
Dr. Ward had an opportunity to observe the maternal aunt and the four minors (S.I., T.H., and the aunts two children) when they were all together in a waiting room and the minors were playing with toys. S.I. appeared to have a good relationship with, and be bonded to, all of them, and appeared to be closest to the maternal aunt. When the maternal aunt and the minors were leaving the building, the paternal grandparents were getting out of their car. S.I. was being held by the aunt, and when the minors attention was called to the grandparents, she smiled and laughed but she did not attempt to get down from the aunts arms. However, she did go easily to the grandmother when the aunt and grandmother approached each other, and then she greeted the grandfather too. The minor was observed to have a very good and bonded relationship with the paternal grandparents and they with her.
Based on his observations of the interactions between S.I. and the maternal aunt, her children, and T.H., and between S.I. and the paternal grandparents, Dr. Ward found that S.I. has "a very good relationship with all of these people," and seems comfortable with, and bonded to, all of them. He found that T.H. is probably more strongly bonded to S.I. than vice versa, but he observed that S.I.s bond with T.H. may become increasingly important to S.I. as S.I. becomes older and more aware of the biological nature of their relationship, and "anything that can be done to further promote their relationship now may well have even more positive implications in the future, whatever happens in terms of the actual physical distance in their relationship" when T.H. leaves the aunts home after she is grown up. Dr. Ward opined that if the paternal grandparents were permitted to adopt S.I., "it would have a definite negative emotional impact on T.H." He opined that at this point in time, the impact would be less on S.I., however he added that he thought "it could be detrimental for [S.I.] further on down the road, once she has a better understanding of the actual nature of her biological situation."
Dr. Ward analyzed that while the paternal grandparents are in a position to provide S.I. with material advantages that the maternal aunt may not have for S.I., and while Fathers other daughter comes to the grandparents home sometimes when S.I. is visiting there, there are no children living in the grandparents home, whereas if the minor is left in her current placement with the maternal aunt, she will be living with her sister T.H. and with two cousins who are her de facto siblings, and will be able to spend time with her sibling J.H., who spends significant periods of time at the aunts home, and her older brother who visits from Northern California; and she may have an easier opportunity to have contact with Mothers newest child.
Further, Dr. Ward observed that living with the paternal grandparents would mean (1) S.I. was in a home environment where her caregivers "are somehow precluding and/or limiting her contact with her . . . siblings because of their own, possibly very unwarranted, suspicions about some potential abuse [in the maternal aunts home]," and (2) the ill will and hostility "would no doubt continue at a fairly high level." Dr. Ward observed that the maternal aunt "has definitely attempted to foster and nurture a close relationship and bond between all of [Mothers] children, to the extent possible, [and f]or whatever reasons, this simply has not occurred to any significant extent when [S.I.] was placed with her paternal grandparents."
Dr. Ward recommended that keeping S.I. in her placement with the maternal aunt would be in the minors best interests. Further he recommended that if the court concludes adoption should go forward, the aunt should be permitted to adopt both S.I. and T.H.
He also stated "an admitted BIAS that [he has] in many of these kinds of case situations," which he admitted was based on impressions he has had from "similar type cases [he has] done for the Dependency Court over the last 30 years," and not on "research or [a] database." He stated that sometimes adoptions outside the family are more workable than adoptions by family members because the latter "often engender[] severe ill will and hostility between family members"; and coupled with the fact that the parents seem very sincere in their assertions that they are finally putting their respective lives together so that they can reunify with their children, perhaps the better route would be to proceed with a legal guardianship for a little while before closing the door with a permanent plan of adoption. He emphasized that he was not making a recommendation to the court or expressing an opinion. He acknowledged that the law favors adoption and that legal guardianship "leaves the door open for repeated and sometimes frivolous additional 388 Petitions."
7. Section 366.26 Final Hearing
Dr. Wards report was filed with the court on February 8, 2008. Also in February, the court directed the Department to prepare an updated section 366.26 report, and the paternal grandmother passed away. A May 5, 2008 report from Mothers substance abuse program (where she enrolled in August 2007), states that she continued to do well in the program and was caring for her infant there, she continued to test negative, she was scheduled to complete her treatment in the first week of August 2008 and enter transitional housing, and she maintained phone visits with the minors, and "looks forward to face-to-face visits with them." The maternal aunt continued to transport T.H. and S.I. to Mothers treatment facility every other weekend for visits. The aunt stated that S.I. interacts easily with Mother but T.H. has to be encouraged by the aunt to interact with her. T.H. prefers to interact with her baby brother. Father and the paternal grandfather pick up S.I. at the aunts home for their visits and the aunt reported the child appears to enjoy the visits and does not display signs of emotional distress when she returns home. The paternal grandfather continued to assert he should be permitted to adopt S.I. The adoption home studies for the maternal aunt and the paternal grandfather were pending.
At the section 366.26 hearing on May 6, 2008, the dependency court found that (1) by clear and convincing evidence S.I. and T.H. are adoptable, (2) Dr. Wards recommendation is that minors remain together, (3) it is in the minors best interests to remain together, (4) the maternal aunt is willing to adopt the minors together, and (5) despite the fact that Mother had been visiting with the minors on a regular basis and Father had been visiting with S.I. regularly, the "parental relationship" exception to termination of parental rights (§ 366.26, subd. (c)(1)(B)(i)) does not apply in this case.
The paternal rights of Mother (to T.H. and S.I.) and Father (to S.I.) were terminated. Thereafter the parents filed timely appeals from the order of termination.
ISSUES ON APPEAL
The issues in this appeal are whether the provisions of the ICWA were complied with, and whether Mother established the parental relationship exception to termination of her parental rights.
1. The ICWA Issue
a. ICWA Notice Requirements
"State law mandates notice to `all tribes of which the child may be a member or eligible for membership. (§ 224.2, subd. (a)(3).)" (In re J.T. (2007) 154 Cal.App.4th 986, 992.) Notice is required when the court, a social worker or a probation officer knows or has reason to know that an Indian child may be involved (§ 224.2, subd. (a)), and a court " `needs only a suggestion of Indian ancestry to trigger the notice requirement. " (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) "If the identity of the tribe cannot be determined, notice must be given to the Bureau of Indian Affairs." (In re Robert A., supra, 147 Cal.App.4th at p. 988.)
"An `Indian tribe is defined as `any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians . . . . (25 U.S.C. § 1903(8); see § 224.1, subd. (a); [Cal. Rules of Court,] rule 5.664 (a)(6).)" (In re J.T., supra, 154 Cal.App.4th at p. 992.)
"The notice sent to the Indian tribes must contain enough identifying information to be meaningful. [Citation.] A `social worker has "a duty to inquire about and obtain, if possible, all of the information about a childs family history" required under regulations promulgated to enforce ICWA. [Citation.]" (In re Robert A., supra, 147 Cal.App.4th at p. 989.)
The juvenile court has a duty to " `review the information concerning the notice given, the timing of the notice, and the response of the tribe, so that it may make a determination as to the applicability of ICWA, and thereafter comply with all of its provisions, if applicable. " (In re Robert A., supra, 147 Cal.App.4th at p. 990.)
A finding by the trial court that ICWA notice was adequately given is reviewed under the substantial evidence test. (In re Robert A., supra, 147 Cal.App.4th at p. 991.)
b. The ICWA Was Not Complied With In This Case
Mother reported to the social worker that her maternal great-grandmother stated there is Indian heritage in the family, however Mother was not able to state a tribe. Nevertheless, on September 27, 2006, the day of the detention hearing, Mother signed form JV-130, a "Parental Notification Of Indian Status," stating she has no Indian ancestry as far as she knows. At the hearing, the Departments attorney noted for the court that Mother had indicated Indian heritage to the social worker, and the court replied: "I suppose after discussing this with [her attorney, Mother filled out the form]." The court made a finding on that day that the ICWA does not apply to the case.
Despite the courts finding of no Indian heritage for Mother, the social worker indicated in her jurisdiction/disposition hearing report for the October 23, 2006 hearing that form JV-135 notices (Notice of Involuntary Child Custody Proceedings For An Indian Child) were sent for T.H. (but not for S.I.) to the Secretary of the Interior/Bureau of Indian Affairs offices in Sacramento, California and Washington, D.C. on October 19, 2006. The report states the notices were sent based on Mothers statement that her mother and grandmother were of Indian ancestry but Mother did not know of what tribe. Only some information about the minors relatives was provided in the form JV-135, including two entirely different names for the maternal grandmother, and a statement that one of the maternal grandmothers indicated that the maternal great-grandfather was Cherokee, but she did not know the great-grandfathers name. No notices were sent to Cherokee tribes. No green return receipts for the mailing were presented by the Department to the dependency court.
At the hearing on October 23, 2006, Father signed a JV-130 Parental Notification Of Indian Status form stating that as far as he knows he has no Indian ancestry. T.H.s father signed the form stating he may have Indian ancestry, but he did not indicate a tribe, and his attorney indicated that he told her his grandparent is an Indian, he does not know the tribe, and his mother would have information about that. The court ordered the Department to investigate the Indian heritage of T.H.s father. On November 6, 2006, another JV-135 notice was sent to the Bureau in Sacramento and Washington, D.C., for the November 13, 2006 hearing. Some additional information was included on that form (information on T.H.s paternal ancestry). There are no return receipt green cards in the record.
Thus, of the three parents for whom the ICWA might be applicable here (Mother, Father, and T.H.s father), only Father indicated he has no Indian ancestry. After the second set of JV-135 notices was sent, the Department stated in each of its reports that the ICWA does not apply to this case, and the court did not address the ICWA issue. Additionally, the two sets of notices sent were only for T.H., yet because Mother asserts Indian heritage, notices for S.I. were also required. Further, the ICWA has time parameters for notice. Section 224.2, subdivision (d) states: "No proceeding shall be held until at least 10 days after receipt of notice by the parent, Indian custodian, the tribe, or the Bureau of Indian Affairs, except for the detention hearing, . . ."
Thus, we cannot find that the ICWA was complied with. Upon remand of this case, the Department should consult with Mother and T.H.s father, and whatever relatives of theirs can be found, to obtain as much information about Indian heritage as possible. The parents and their attorneys must cooperate in this effort. ICWA notices should then be sent to the statutorily required addressees.
2. The Trial Court Did Not Abuse Its Discretion When It Determined That The "Parental Relationship" Exception To Termination Of Parental Rights Does Not Apply Here
a. Adoption Is The Preferred Permanent Plan
Adoption is the Legislatures first choice for a permanent plan for a dependent child because it is more secure and permanent than a legal guardianship or long term foster care. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Section 366.26, subdivision (c) provides that when a court finds by clear and convincing evidence that it is likely a dependent child will be adopted, the court shall terminate parental rights and order the child placed for adoption. A finding that the child continued to be removed from the custody of the parents and reunification services were terminated "shall constitute a sufficient basis for termination of parental rights" (§ 366.26, subd. (c)), and the court must terminate those rights unless the court finds to be true any of the circumstances set out in section 366.26, subdivision (c)(1)(A) or (c)(1)(B)(i)-(vi).
It is a parents burden to prove that one or more of the (c)(1)(A) or (B) exceptions to termination of parental rights applies to his or her child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 449.) When a parent claims one or more of the exceptions, the claim must be examined in light of the Legislatures preference for adoption, and only in exceptional circumstances will the court choose a permanent plan other than adoption. (In re Celine R., supra, 31 Cal.4th at p. 53.)
b. Standard Of Review Regarding Statutory Exceptions To Adoption
In reviewing a trial courts determination on the applicability of statutory exceptions to termination of parental rights, appellate courts have utilized both the substantial evidence test and the abuse of discretion test. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) The Jasmine D. court observed that "[t]he practical differences between the two standards of review are not significant. `[E]valuating the factual basis for an exercise of discretion is similar to analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be shown to the trial judge. The reviewing court should interfere only " `if [it] find[s] that under all the evidence, viewed most favorably in support of the trial courts action, no judge could reasonably have made the order that he [or she] did. . . . " [Citations.] However, the abuse of discretion standard is not only traditional for custody determinations, but it also seems a better fit in cases like this one, especially since [subdivision (c)(1)(B) of] the statute now requires the juvenile court to find a `compelling reason for determining that termination would be detrimental to the child. [Citation.] That is a quintessentially discretionary determination. The juvenile courts opportunity to observe the witnesses and generally get `the feel of the case warrants a high degree of appellate court deference. [Citation.]" (Ibid.)
c. Parameters Of The Parental Relationship Exception
Mother contends the trial court erred when it did not find a subdivision (c)(1)(B)(i) "parental relationship" exception to termination of her parental rights. That exception applies when "[t]he 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).) To establish the applicability of that exception, a parent must show more than " `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 childs life. [Citation.]" In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)
The parental relationship exception to termination of parental rights has been interpreted to mean that "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 sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [¶] 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 adults attention to the childs 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." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) It has been noted, however, that the evidence of a childs relationship with a parent should be considered in the context of the amount of visitation a parent has been permitted to have. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.)
d. There Is No Abuse of Discretion In The Trial Courts Finding That The Parental Relationship Exception Does Not Apply Here
Applying the Andrea R. and Autumn H. analyses of the parental relationship exception to termination of parental rights, it is clear to this court that there was no abuse of discretion when the trial court determined the parental relationship exception does not apply to Mothers relationship with T.H., or with S.I.. Nothing in the Departments reports describes the type of relationship between Mother and the minors that is necessary to meet the parental relationship exception.
Regarding T.H., the record shows that for many years, it has been the minors maternal aunt who did everything for her. T.H. recognized that Mother had abandoned caring for her, and T.H. clearly wanted to be adopted by the maternal aunt, the person with whom she feels secure. She stated that preference to the social workers and to Dr. Ward. Nothing in the record suggests that termination of parental rights would be detrimental to her.
Nor do we find that S.I.s relationship with Mother is such that termination of parental rights as to S.I. would be detrimental to the minor and she would be greatly harmed. In her short life, S.I.s daily needs have been attended to by many people, including Mother, the maternal aunt, the parental grandparents, and the paternal grandparents tenant. However, by the time Mothers parental rights were terminated, it had been at least 19 months since Mother had occupied a caregiver role in the minors life. Dr. Ward found that S.I. interacts easily and lovingly with the people who have cared for her during that 19 months—the maternal aunt and the paternal grandparents—and that she is quite bonded with them. Thus, although S.I.s name for Mother was "Mommy," the record does not show that Mother occupies a true parental role in the minors life. That role has been filled by the maternal aunt and the paternal grandparents.
Nor does the record demonstrate a strong bond between Mother and S.I. Mothers visits with S.I. have been variously described as follows: S.I. interacts with Mother (October 2006 report); the quality of the visits between Mother and S.I. is adequate (May 2007 report); and, S.I. interacts with Mother and appears to enjoy Mothers company (May 2008 report). The record does not show that S.I. was suffering from not seeing Mother during the many months that Mother dropped out of the minors life. There was no evidence that when Mothers visits with S.I. end, the minor is distressed.
Moreover, during the 19 months that passed between when the minors were detained by the Department and when the court terminated parental rights, Mother had periods when she visited with the minors regularly, but also a lengthy period of time (January to September 2007) when she had practically no communication with them. Essentially, her periods of visitation occurred during the periods she was enrolled drug treatment programs, and she ignored the minors when she was not in therapy. Indeed, when she was not in treatment, on the occasions she did call the maternal aunt or the paternal grandparents, it was only to talk with them, not with the minors.
Thus, the record does not show that the relationships between Mother and the minors promotes the minors well-being to such a degree that it outweighs the well-being the children will gain from having their home with the maternal aunt become their permanent home by adoption. Moreover, the maternal aunt has repeatedly stated that adoption will not sever Mothers relationship with the minors, or for that matter, with any of the other adults that have cared for her during her short life, and the record shows that she has been most accommodating in facilitating visits between Mother and the minors, and the grandparents and S.I.
DISPOSITION
The order terminating the parents parental rights is reversed and the cause is remanded for further proceedings, consistent with the views expressed herein, for the sole purpose of ensuring compliance with the ICWA. If, after proper ICWA inquiries and notices are made, a tribe claims that T.H. or S.I. is an Indian child, the dependency court shall proceed in this case in conformance with the provisions of the ICWA. If determinative responses from the tribes are not received within the statutory time period and no tribe claims in its response that T.H. or S.I. is an Indian child, the order terminating the parents parental rights shall be reinstated.
WE CONCUR:
KLEIN, P. J.
KITCHING, J.