Filed 11/8/13 In re K.B. CA4/3




                        NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE

In re K.B., a Person Coming Under the
Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES
AGENCY,
                                                                       G048198
     Plaintiff and Respondent,
                                                                       (Super. Ct. No. DP021412)
                   v.
                                                                       OPINION
K.B. et al.,

     Defendants and Appellants.


                   Appeal from a postjudgment order of the Superior Court of Orange County,
Deborah C. Servino, Judge. Affirmed.
                   Jacob I. Olson, under appointment by the Court of Appeal, for Defendant
and Appellant K.B.
                   Marsha F. Levine, under appointment by the Court of Appeal for Defendant
and Appellant R.L.
                   Nicholas S. Chrisos, County Counsel, Karen L. Christensen and Aurelio
Torre, Deputy County Counsel, for Plaintiff and Respondent.
              No appearance for the Minor.


                               *              *             *


              K.B. (father) and R.L. (mother), parents of K.B. (the child), appeal from an
order issued after the permanency planning hearing that chose adoption as the permanent
plan for the child and terminated father’s and mother’s parental rights. (Welf. & Inst.
Code, § 366.26; unless otherwise indicated, all further statutory references are to this
code). Both appellants contend the juvenile court erred in concluding the parent-child
relationship exception to terminating parental rights (§ 366.26, subd. (c)(1)(B)(i)) did not
apply in this case. In addition, father argues the order must be reversed because the lower
court failed to provide proper notice as required under the Indian Child Welfare Act (25
U.S.C. § 1901 et seq.; ICWA). Finding no error, we affirm the juvenile court’s order.


                     FACTS AND PROCEDURAL BACKGROUND


              This case began in August 2010, when the Los Angeles Department of
Child and Family Services (LADCFS) filed a dependency petition on behalf of the child,
born in June 2009, arising from the parents’ history of alcohol abuse and domestic
violence. At the jurisdictional hearing, the parents entered no contest pleas to the petition
and the juvenile court found the failure to protect (§ 300, subd. (b)) allegation true. The
court placed the child with mother under a family maintenance plan, while father was
authorized monitored visitation plus referrals to participate in reunification programs and
testing. Reports prepared in January and March 2011 noted father had participated in
weekly visits with the child without any problems.
              Shortly after a March status review hearing, LADCFS learned the child had
suffered a six-inch long burn on his chest and mother was found to be intoxicated while

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caring for him. LADCFS removed him from her custody and filed a subsequent petition.
The petition was sustained and the child placed with a maternal aunt and uncle. The
court ordered that both parents receive reunification services. Since both parents then
resided in Orange County, the court ordered the proceedings transferred to Orange
County. An order accepting the transfer was entered in July.
               In late September 2011, custody of the child was placed with his maternal
grandparents. A status review hearing was conducted in December. The Orange County
Social Services Agency (SSA) reported both parents had visited with the child twice a
week and the maternal grandparents noted “the child loves to see his parents.” The
assigned social worker described each parent’s compliance with their reunification plans
as moderate.
               In May 2012, the social worker reported both parents continued to
consistently visit with the child and had one overnight stay with him that went well. In a
report for the twelve-month status review hearing, SSA described the parents’
compliance with their reunification plans as substantial and noted it was probable the
child could be returned to their care at the eighteen-month review. Because of the
parents’ progress, on May 3, 2012, the SSA placed the child with the parents for a 60-day
trial stay.
               The trial stay did not last long. SSA learned mother returned the child to
the maternal grandparents on May 10. Mother initially told the social worker the child
was having some difficulty adjusting to the new living arrangement. She later admitted
taking the child to the grandparents because father wanted her to drink with him and
when she refused, he became angry and struck her. Mother reported the incident to the
police only after the social worker pressed her to do so.
               During the month of June mother failed to visit the child while father
visited him only once. At a July status review hearing, the juvenile court terminated



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reunification services for father. However, it gave mother one “last opportunity” to
complete her service plan.
              Before the eighteen-month review hearing, both parents continued to
regularly visit with the child, except that father missed some visits due to work or illness.
In September, mother missed tests for drug and alcohol use and began drinking again. In
October, the court terminated mother’s service plan and scheduled the case for a
permanency planning hearing.
              Shortly thereafter, the child was again placed in the home of his maternal
aunt and uncle. The couple expressed a willingness to adopt him. After the change in
placement, the parents’ visits with the child became sporadic. Mother testified she
entered a residential substance abuse program. She had three visits with the child in
December, one in January 2013, and another in February. During the February 2013
permanency planning hearing, mother claimed she had spoken with the child once a week
since October. Between October 2012 and February 2013, father had a single one-hour
visit with the child. At the permanency planning hearing, father testified he missed visits
because of illnesses that resulted in his being hospitalized.
              The permanency planning hearing began February 15, 2013. After
receiving SSA’s report, plus testimony from parents and the maternal grandmother, and
argument, the juvenile court found the child adoptable. In addition, it tentatively ruled
the parent-child relationship exception applied. The court continued the hearing for a
month to consider which alternate permanent plan would be appropriate.
              But at the next hearing, the court reversed its decision on the appropriate
permanent plan. Based on a review of her “notes and the relevant case law,” the judge
found “the parents have not shown . . . that the beneficial parent-child relationship
exception applies . . . .” As to mother, the court found her visitation was consistent “until
October [2012]” when she “stopped visitation for . . . more than 30 days,” with “even
more sporadic [visitation in] December, January and February.” It rejected mother’s

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claim the lack of visitation was due to the distance between her residential facility and the
caretakers’ home because she “could have contacted the social worker” to arrange visits.
              As for father, even assuming it could find his visitation was consistent, the
court concluded “the visits” were more akin to “that . . . of a friendly visitor or relative
than of the parental” nature, and thus “d[id] not meet th[e] threshold of the second
prong.” The court then concluded adoption was in the child’s best interest and
terminated mother’s and father’s parental rights.


                                       DISCUSSION


1. The Parent-Child Relationship Exception
              “By the time of a section 366.26 hearing, the parent’s interest in
reunification is no longer an issue and the child’s interest in a stable and permanent
placement is paramount. . . . Adoption is the Legislature’s first choice because it gives
the child the best chance at such a commitment from a responsible caretaker.” (In re
Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Here, neither father nor mother
challenge the juvenile court’s finding that clear and convincing evidence support a
conclusion the child was adoptable.
              Rather, the parents argue they each satisfied the requirements for the
parent-child exception under section 366.26, subdivision (c)(1)(B)(i). “Once the court
determines the child is likely to be adopted, the burden shifts to the parent to show that
termination of parental rights would be detrimental to the child under one of the
exceptions listed . . . .” (In re C.F. (2011) 193 Cal.App.4th 549, 553.) “Overcoming the
statutory preference for adoption and avoiding the termination of parental rights requires
the parent to show both that he or she has maintained regular visitation with the child and
that the child would benefit from continuing the relationship. [Citation.]” (In re Marcelo
B. (2012) 209 Cal.App.4th 635, 643

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               The parties acknowledge appellate courts disagree on the appropriate
standard of review concerning a ruling on the parent-child exception. “Most courts have
applied the substantial evidence standard” (In re K.P. (2012) 203 Cal.App.4th 614, 621),
while “at least one court has concluded that it is properly reviewed for abuse of
discretion” (ibid.; see In re Jasmine D., supra, 78 Cal.App.4th at p. 1351). A third
approach “incorporates both . . . standards of review.” (In re K.P., supra, 203
Cal.App.4th at p. 621.) First, “whether a beneficial parental . . . relationship exists . . . is,
because of its factual nature, properly reviewed for substantial evidence.” (Id. at p. 622.)
Second, “whether the existence of that relationship . . . constitutes ‘a compelling reason
for determining that termination would be detrimental to the child[,]’ . . . ‘calls for the
juvenile court to determine the importance of the relationship in terms of the detrimental
impact that its severance can be expected to have on the child and to weigh that against
the benefit to the child of adoption,’ is . . . reviewed under the deferential abuse of
discretion standard.” (Ibid.; see also In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-
1315.)
               We need not determine which of these approaches is most appropriate since
under any of them, the juvenile court properly rejected the parent-child exception in this
case. The court expressly found mother failed to maintain regular visitation with the
child and expressed some doubt that father satisfied this requirement as well. At times
during the dependency proceedings both parents were consistent in visiting the child. But
during other periods, they failed to do so. After the unsuccessful 60-day trial stay in May
2012, mother did not see the child at all the following month while father visited him
only once. When the juvenile court scheduled the permanency planning hearing, both
mother and father failed to consistently visit the child. Mother did not see him at all
during the remainder of October or in November. She visited him only three times in
December and once each in January and February 2013. During the same time span
father saw the child on a single occasion for an hour. “‘Sporadic visitation is insufficient

                                                6
to satisfy the first prong . . . ’ of the exception.” (In re Marcelo B., supra, 209
Cal.App.4th at p. 643; see also In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324
[“While the mother’s visitation . . . had been consistent and positive during a previous
period of time, during the six months preceding the selection and implementation hearing
it had been sporadic”].)
              Nor has either parent established the court erred in finding the exception’s
second requirement was absent. “A beneficial relationship ‘is one that “promotes the
well-being of the child to such a degree as to outweigh the well-being the child would
gain in a permanent home with new, adoptive parents.” [Citation.] The existence of this
relationship is determined by “[t]he age of the child, the portion of the child’s life spent
in the parent’s custody, the ‘positive’ or ‘negative’ effect of interaction between parent
and child, and the child’s particular needs.”’” (In re Marcelo B., supra, 209
Cal.App.4th at p. 643.) “Satisfying the second prong requires the parent to prove that
‘severing the natural parent-child relationship would deprive the child of a substantial,
positive emotional attachment such that the child would be greatly harmed. [Citations.]
A biological parent who has failed to reunify with an adoptable child may not derail an
adoption merely by showing the child would derive some benefit from continuing a
relationship maintained during periods of visitation with the parent.’” (Ibid.)
              While the child spent much of his short life with his parents, the evidence
reflects that interaction was not beneficial to him. This proceeding arose from the
parents’ problems with alcohol abuse and domestic violence. Initially left in mother’s
care, the juvenile court eventually took custody from her after the child was found to
have been injured and mother appeared to be intoxicated. A later trial stay with both
parents was a spectacular failure when the parents, after nearly two years of family
maintenance and reunification services, immediately resorted to the behaviors that
initially lead to this proceeding. Even after mother was given one last opportunity to
reconcile with the child, she was unable to stay sober for more than a few months.

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              Simply because the child enjoyed his visits with both parents is not enough
to find the parent-child exception applies. “Evidence that a parent has maintained
‘“frequent and loving contact” is not sufficient to establish the existence of a beneficial
parental relationship.’” (In re Marcelo B., supra, 209 Cal.App.4th at p. 643.) Thus, we
conclude the juvenile court properly rejected the parents’ request that it find the parent-
child exception applied in this case.


2. The ICWA
              Under the ICWA, “[i]n any involuntary proceeding in a State court, where
the court knows or has reason to know that an Indian child is involved, the party seeking
the foster care placement of, or termination of parental rights to, an Indian child shall
notify the parent or Indian custodian and the Indian child’s tribe . . . of the pending
proceedings and of their right of intervention.” (25 U.S.C. § 1912(a); see also § 224.1,
subd. (d) [under California law, “a ‘child custody proceeding’ within the meaning
of . . . the Indian Child Welfare Act” includes “a proceeding for . . . termination of
parental rights”].)
              When this case was initially filed, father told LADCFS that he might have
some Indian ancestry on his mother’s side. Since the child was initially placed in
mother’s custody, the Los Angeles County Juvenile Court concluded LADCFS did not
have to comply with the ICWA’s notice requirements. (See In re J.B. (2009) 178
Cal.App.4th 751, 758 [the ICWA does not apply to “a proceeding for placement with a
parent”].) Subsequently, the child was removed from mother’s custody as well, but the
juvenile court did not amend its order concerning ICWA compliance.
              Upon the case’s transfer to Orange County, SSA reported that “Los
Angeles County Juvenile Court found that the [ICWA] does not apply.” In subsequent
reports, SSA did note “father indicated that he has American Indian Ancestry,” but never



                                              8
attempted to comply with the ICWA and the Orange County Juvenile Court also never
ordered SSA do so.
              On appeal, father argues the failure to comply with the ICWA’s notice
requirements requires reversal of the juvenile court’s termination of parental rights order.
Initially, SSA conceded father’s argument had merit, but urged this court to limit the
reversal solely to ensure compliance with the ICWA and, in the event the child is either
not found to be an Indian child or no tribe claims him as a member, reinstate the order
terminating appellant’s parental rights. (See In re Nikki R. (2003) 106 Cal.App.4th 844,
855-856.)
              But in a footnote SSA also mentioned that while this appeal was pending it
had initiated compliance with the laws governing Indian children. Recently, SSA filed a
motion in this court requesting we take additional evidence or augment the record with
eight exhibits consisting of juvenile court minute orders, an SSA interim review report,
and documentation establishing compliance with the notice requirements of the ICWA
and state law. SSA contends “[t]he attached reports and additional documents resolve
[f]ather’s ICWA concerns.” This court issued an order granting SSA’s motion and
affording appellants an opportunity to file supplemental briefs responding to the motion.
Neither parent has filed a response.
              Generally, this court has authority to receive additional evidence (Code
Civ. Proc., § 909) and augment the appellate record (Cal. Rules of Court, rules 8.410(b)
& 8.155(a); see In re Christopher I. (2003) 106 Cal.App.4th 533, 562). But in In re Zeth
S. (2003) 31 Cal.4th 396, the Supreme Court overturned a decision by this court that had
reversed an order terminating parental rights based on statements appearing in an
attorney’s unsworn letter brief. Applying the general rule that “‘an appeal reviews the
correctness of a judgment as of the time of its rendition, upon a record of matters which
were before the trial court for its consideration’” (id. at p. 405), Zeth S. concluded
“consideration of postjudgment evidence of changed circumstances in an appeal of an

                                              9
order terminating parental rights, and the liberal use of such evidence to reverse juvenile
court judgments and remand cases for new hearings, would violate both the generally
applicable rules of appellate procedure, and the express provisions of section 366.26
which strictly circumscribe the timing and scope of review of termination orders, for the
very purpose of expediting the proceedings and promoting the finality of the juvenile
court’s orders and judgment[]” (id. at p. 413, fn. omitted).
              Nonetheless, in a later decision, In re Josiah Z. (2005) 36 Cal.4th 664, the
Supreme Court held the children’s appellate counsel could move to dismiss an appeal
filed by their trial attorney “based on [appellate counsel’s] analysis of the[ children’s]
best interests.” (Id. at p. 673.) Josiah Z. distinguished Zeth S., noting it concerned “an
appellate court . . . solicit[ing] postjudgment evidence in order to reopen and reconsider
trial court findings and reverse the trial court’s judgment.” (In re Josiah Z., supra, 36
Cal.4th at p. 676.)
              Subsequent appellate decisions have granted requests to take additional
evidence or augment the appellate record in juvenile dependency appeals from orders
terminating parental rights to rebut claims the juvenile court failed to comply with the
ICWA. In re A.B. (2008) 164 Cal.App.4th 832 affirmed a parental rights termination
order after granting a child welfare agency’s motion to augment the appellate record with
postjudgment evidence to overcome a claim the juvenile court initially failed to comply
with the ICWA. A.B. distinguished its ruling from Zeth S. noting, “the Agency submitted
to the juvenile court a certified copy of a court record . . ., which is subject to judicial
notice. . . . Further, the Agency did not seek to augment the record with evidence
pertaining to the substantive merits of the juvenile court’s termination of parental rights,
and the evidence cannot be used to reverse the judgment on substantive grounds. The
ICWA inquiry issue is distinct from the substantive merits of the court’s
ruling . . . . Also, admission of the evidence to affirm the judgment would promote the
finality of the judgment and prevent further delay.” (In re A.B., supra, 164

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Cal.App.4th at p. 841; see also In re E.W. (2009) 170 Cal.App.4th 396, 403, fn. 2
[granting child welfare agency’s motion to take evidence supporting ICWA compliance
because “this evidence will assist in supporting the juvenile court’s order and will not
create unnecessary delay on appeal”].)
              We conclude the holdings in Joziah Z., A.B., and E.W. apply to these
appeals. The exhibits submitted by SSA consist of minute orders where the juvenile
court reappointed counsel to represent each parent, contacted father and his relatives and
learned his mother had “Choctaw Indian ancestry.” SSA sent notices with return receipt
requested to the Bureau of Indian Affairs and three Choctaw tribes; Choctaw Nation of
Oklahoma, Jena Band-Choctaw, and Mississippi Band of Choctaw Indians. Each of the
tribes responded. Two tribes reported that neither the child nor his relatives were
members or eligible for membership in the tribe. The third reported it was “unable to
establish Indian heritage.” At a later periodic review hearing, the juvenile court admitted
SSA’s interim report documenting its efforts to comply with the ICWA’s notice
requirements and the responses received from the respective tribes, and based on this
evidence found the ICWA does not apply to this case.
              As noted, we offered both father and mother an opportunity to respond to
SSA’s motion and neither did so. Given the nature of the new evidence and the fact that
its acceptance will promote finality of the case by eliminating further delay, we conclude
the record shows there has been full compliance with the ICWA and therefore reject
father’s contention.




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                                  DISPOSITION


            The postjudgment order is affirmed.




                                             RYLAARSDAM, ACTING P. J.

WE CONCUR:



BEDSWORTH, J.



MOORE, J.




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