Filed 9/22/14 In re Le.B. CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



In re LE.B., a Person Coming Under the
Juvenile Court Law.
                                                                 D065371
SAN DIEGO COUNTY HEALTH AND
HUMAN SERVICES AGENCY,
                                                                 (Super. Ct. No. J518352)
         Plaintiff and Respondent,

         v.

L.B. et al.,

         Defendants and Appellants.


         APPEALS from orders of the Superior Court of San Diego County, Kimberlee A.

Lagotta, Judge. Affirmed.



         Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and

Appellant L.B.

         Christopher Blake, under appointment by the Court of Appeal, for Defendant and

Appellant Tamika B.
       Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County

Counsel, and Carra L. Rhamy, Deputy County Counsel, for Plaintiff and Respondent.

       L.B. and Tamika B. appeal the juvenile court's orders terminating their parental

rights to their minor son Le.B. L.B. contends the court erred by finding the beneficial

parent-child relationship exception did not apply to preclude terminating his parental

rights. Additionally, L.B. and Tamika contend the court erred by failing to provide notice

of the proceedings to the Bureau of Indian Affairs (BIA). We affirm the orders.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In February 2012, L.B. was stopped crossing into the United States from Mexico

at the border with two-year-old Le.B. in the car. L.B. was arrested when agents found

more than 28 pounds of methamphetamine in his car with an estimated street value of

almost $400,000. As a result, Le.B. was taken into protective custody by the San Diego

County Health and Human Services Agency (Agency). After L.B.'s arrest, a border

patrol agent contacted Tamika, who was living in Washington State at the time, and

Tamika immediately drove to San Diego.

       When Tamika arrived she was interviewed by an Agency social worker. Tamika

reported she and L.B. were married, but L.B. had been living in Long Beach, California,

with Le.B. for the past few months. Tamika told the social worker she had been abused

by L.B. in the presence of Le.B. She also reported she suffered from significant mental

illness, but was not currently under the care of a psychiatrist or therapist. Tamika said

she knew L.B. was traveling across the border frequently with Le.B., but denied any

awareness of illegal activity and saw no risk to Le.B. from L.B.'s conduct. L.B. was also

                                             2
interviewed by the Agency's social worker. He claimed he did not know drugs were in

his car when he was arrested, but admitted to a lengthy criminal history that included

arrests for attempted murder and kidnapping.

       The Agency determined Tamika could not safely care for Le.B. and filed a petition

in the juvenile court under Welfare and Institutions Code section 300, subdivision (b) 1

alleging Le.B. was at substantial risk of harm. The juvenile court sustained the

allegations of the petition at the detention hearing and at the subsequent contested

disposition hearing, declared Le.B. a dependant, removed him from parental custody and

ordered reunification services for both parents. The court ordered Le.B. placed in a

confidential licensed foster home.

       In their initial interviews with the Agency's social worker, both parents denied any

Native American heritage. A few weeks later, however, L.B. reported a family

connection to the Blackfoot Tribe. The juvenile court set a special hearing to address the

potential application of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).

In response to L.B.'s statement, the Agency's ICWA specialist conducted interviews with

L.B.'s mother and her cousin. Neither woman knew of any family member who was an

enrolled member of a Native American tribe or that lived on a reservation. No one in the

family ever received benefits from a tribe, spoke a native tribal language or participated

in tribal political activities. L.B.'s mother stated that she may have been to a pow wow in

Chicago when she was nine, but had not participated in any tribal cultural or religious


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

                                             3
activities since. Based on the two interviews, the ICWA specialist concluded L.B. had no

other family members who could provide information about possible Native American

heritage. The Agency submitted the findings of the ICWA specialist to the court and,

based on those findings, the court concluded at the special hearing that ICWA was not

applicable.

       At the time of the six-month review hearing, Tamika was still living in

Washington and had only recently begun engaging in the services required by her case

plan. L.B. remained in federal custody and was awaiting trial. The Agency reported

Le.B. was happy with his foster family. Le.B. had regular visitation with L.B. in prison

and occasionally spoke with his parents on the phone.2 The Agency reported L.B. was

appropriate and attentive to Le.B. during visits. At the six-month review hearing, the

court continued reunification services for both parents.

       By the time of the 12-month review hearing, L.B. had been convicted of drug

trafficking and was awaiting sentencing. L.B. continued regular visits with Le.B. and the

interactions continued to be positive. On at least one occasion, Le.B. was upset when the

visit ended. Tamika moved back to San Diego and began visitation with Le.B. She also

enrolled in services required by her case plan, including individual therapy and domestic

violence classes. Before the 12-month review hearing, the Agency received the results of

Tamika's psychological examination, which it had previously requested. The report

indicated Tamika suffered from posttraumatic stress and borderline personality disorders.

2      Le.B. was placed with a foster family whose primary language was Spanish. Both
parents complained phone contact was difficult because of the language barrier.

                                             4
       In its report for the hearing, the Agency recommended services be terminated for

both parents. In support of this recommendation, the Agency relied on the reporting

psychologist's statement that it would take five years of intensive therapy for Tamika to

improve her mental health enough to care for Le.B. The parents contested the Agency's

recommendations, arguing reasonable services had not been provided. At the conclusion

of the contested hearing, the juvenile court found the Agency had provided reasonable

services to both parents and it was not likely Le.B. would be returned to their care by 18

months. The court terminated services and set the permanency planning hearing.

       Le.B. was placed in a new foster home with a family that wanted to adopt him if

L.B. and Tamika's parental rights were terminated. Le.B. was thriving in his new home

and his foster parents saw improvements in behavioral issues. By the time of the section

366.26 hearing, L.B. had been sentenced to nine years in federal prison and transferred to

an Oregon facility. He continued to have telephonic visitation with Le.B. after his

transfer. However, Le.B.'s foster mother had difficulty persuading Le.B., who was now

four and a half years old, to talk to L.B.

       At the contested section 366.26 hearing, the court heard the testimony of both

parents, the prospective adoptive mother, the family's social worker and an Agency

worker that transported Le.B. to and supervised visits with L.B. in prison. After

considering the evidence and arguments of counsel, the juvenile court found Le.B. was

generally and specifically adoptable and that neither parent had shown the beneficial

parental or sibling relationship exception to adoption was applicable. The court

terminated parental rights and referred Le.B. for adoptive placement.

                                             5
                                       DISCUSSION

                                              I

       Both parents contend the juvenile court erred by not complying with the notice

requirements of ICWA. They argue notice of the proceedings should have been sent to

the Blackfoot Tribe and the BIA.

                                             A

       "ICWA protects the interests of Indian children and promotes the stability and

security of Indian tribes and families by establishing certain minimum federal standards

in juvenile dependency cases." (In re Shane G. (2008) 166 Cal.App.4th 1532, 1538

(Shane G.).) An Indian child is defined as any unmarried person who is under age 18 and

is either (a) a member of an Indian tribe, or (b) eligible for membership in an Indian tribe

and the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)

       ICWA imposes a duty to give the child's tribe notice of the pending proceedings

and provides the tribe a right to intervene "[w]hen a court 'knows or has reason to know

that an Indian child is involved' in a juvenile dependency proceeding." (Shane G., supra,

166 Cal.App.4th at p. 1538; § 224.2, subd. (a).) "Alternatively, if there is insufficient

reason to believe a child is an Indian child, notice need not be given." (Shane G., at

p. 1538.) Notice requirements are meant to ensure that the child's Indian tribe will have

the opportunity to intervene and assert its rights in the proceedings. (In re Kahlen W.

(1991) 233 Cal.App.3d 1414, 1421.)

       Section 224.3, subdivision (a) imposes an "affirmative and continuing duty" on the

court and the Agency "to inquire whether a child for whom a petition . . . is to be, or has

                                              6
been, filed is or may be an Indian child in all dependency proceedings . . . ." Subdivision

(b) states circumstances that may provide reason to know the child is a Native American

child include the following: "(1) A person having an interest in the child . . . provides

information suggesting the child is a member of a tribe or eligible for membership in a

tribe or one or more of the child's biological parents, grandparents, or great-grandparents

are or were a member of a tribe. (2) The residence or domicile of the child, the child's

parents, or Indian custodian is in a predominantly Indian community. (3) The child or the

child's family has received services or benefits from a tribe or services that are available

to Indians from tribes or the federal government, such as the Indian Health Service."

(See also Cal. Rules of Court, rule 5.481(a)(5).)

       If these or other circumstances indicate a child may be a Native American child,

the social worker must further inquire regarding the child's status. Further inquiry

includes interviewing the parents, extended family members or any other person who can

reasonably be expected to have information concerning the child's membership status or

eligibility. (§ 224.3, subd. (c).) If the inquiry leads the social worker or the court to

know or have reason to know a Native American child is involved, the social worker

must provide notice to the tribe and the BIA. (Id., subd. (d); Shane G., supra, 166

Cal.App.4th at pp. 1538-1539.) More than a bare suggestion of Native American

ancestry is needed before notice is required. (In re Jeremiah G. (2009) 172 Cal.App.4th

1514, 1520.)




                                              7
                                            B

       Proper inquiry was conducted to determine whether Le.B. was a Native American

child within the meaning of ICWA. Social workers asked both parents whether they had

possible Indian heritage. After initially denying Native American heritage, L.B. reported

his family had "a connection with [the] Blackfoot Tribe." The Agency's ICWA specialist

then conducted interviews of L.B.'s mother and her cousin concerning the family's Native

American heritage. According to these relatives, no family members had ever been

registered or eligible for enrollment with a tribe. No family members spoke a Native

American language, attended a Native American school, received services from a tribe,

or lived on a reservation. Aside from his mother's uncertain recollection of attending a

pow wow, no family member participated in Native American cultural or political

affairs.3

       The interviews conducted by the Agency's ICWA specialist fulfilled the Agency's

and court's duty to inquire into the possibility Le.B. was a Native American child.

(§ 224.3, subd. (a).) The specialist's inquiry did not uncover any reason to believe Le.B.

was a Native American child. (§ 224.3, subd. (b).) On this record, the court was not

required to provide ICWA notice.4 (§ 224.3, subd. (d); Shane G., supra, 166



3      Tamika argues the Agency should have also interviewed L.B.'s paternal relatives.
Nothing in the record, however, suggests Native American heritage on L.B.'s father's side
and the Agency's ICWA specialist determined L.B. had no other relatives with
information about the family's possible Native American heritage.

4      Tamika also complains (1) that the form used in juvenile dependency proceedings
to document a claim of Native American heritage was not obtained from L.B. and (2) that
                                             8
Cal.App.4th at p. 1539 [an attenuated, speculative or vague claim of Indian heritage is

insufficient to trigger notice requirements under ICWA].) "Where, as here, the record is

devoid of any evidence a child is an Indian child, reversing the judgment terminating

parental rights for the sole purpose of sending notice to the tribe would serve only to

delay permanency for a child . . . rather than further the important goals of and ensure the

procedural safeguards intended by ICWA." (Shane G., at p. 1539.)

                                             II

       L.B. argues insufficient evidence supported the juvenile court's finding that the

parent-child relationship exception to adoption did not apply. L.B. asserts he maintained

regular visitation and contact with Le.B. and had a beneficial parental relationship that

outweighed the benefits of adoption.

                                             A

       After reunification services are terminated, the focus of a dependency proceeding

shifts from preserving the family to promoting the best interests of the child, including

the child's interest in a stable, permanent placement that allows the caregiver to make a

full emotional commitment to the child. (In re Fernando M. (2006) 138 Cal.App.4th

529, 534.) At the selection and implementation hearing, the court has three options:




she and L.B. were not present at the special hearing set to address the application of
ICWA. In light of the Agency's investigation, the lack of the form is immaterial. With
respect to the parents' presence at the hearing, the record indicates counsel for both
parents were present and did not raise any objection to the court's finding that ICWA was
not applicable.

                                             9
(1) terminate parental rights and order adoption as the permanent plan; (2) appoint a legal

guardian for the child; or (3) order the child placed in long-term foster care. (Ibid.)

       "Adoption, where possible, is the permanent plan preferred by the Legislature."

(In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) If the court finds a child cannot be

returned to his or her parent and is likely to be adopted if parental rights are terminated, it

must select adoption as the permanent plan unless it finds termination of parental rights

would be detrimental to the child under one of the specified statutory exceptions.

(§ 366.26, subd. (c)(1)(A) & (B)(i)-(vi); In re Erik P. (2002) 104 Cal.App.4th 395, 401.)

"The parent has the burden of establishing the existence of any circumstance that

constitutes an exception to termination of parental rights." (In re T.S. (2009) 175

Cal.App.4th 1031, 1039.) Because a selection and implementation hearing occurs "after

the court has repeatedly found the parent unable to meet the child's needs, it is only in an

extraordinary case that preservation of the parent's rights will prevail over the

Legislature's preference for adoptive placement." (In re Jasmine D. (2000) 78

Cal.App.4th 1339, 1350.)

       Section 366.26, subdivision (c)(1)(B)(i) provides an exception to the adoption

preference if termination of parental rights would be detrimental to the child because

"[t]he parents have maintained regular visitation and contact with the child and the child

would benefit from continuing the relationship." Courts have interpreted the phrase

" 'benefit from continuing the . . . relationship' " to refer to a parent-child relationship that

"promotes the well-being of the child to such a degree as to outweigh the well-being the

child would gain in a permanent home with new, adoptive parents. In other words, the

                                               10
court balances the strength and quality of the natural parent[-]child relationship in a

tenuous placement against the security and the sense of belonging a new family would

confer. If severing the natural parent[-]child relationship would deprive the child of a

substantial, positive emotional attachment such that the child would be greatly harmed,

the preference for adoption is overcome and the natural parent's rights are not

terminated." (In re Autumn H., supra, 27 Cal.App.4th at p. 575; accord, In re Jason J.

(2009) 175 Cal.App.4th 922, 936.)

       To meet the burden of proof for this statutory exception, the parent must show

more than frequent and loving contact, an emotional bond with the child or pleasant

visits. (In re Derek W. (1999) 73 Cal.App.4th 823, 826-827.) The parent must show he

or she occupies a parental role in the child's life, resulting in a significant, positive

emotional attachment from child to parent that if severed would result in harm to the

child. (Id. at p. 827; In re Elizabeth M. (1997) 52 Cal.App.4th 318, 324.) The exception

does not require proof the child has a " 'primary attachment' " to the parent or the parent

has maintained day-to-day contact with the child. (In re S.B. (2008) 164 Cal.App.4th

289, 299; In re Brandon C. (1999) 71 Cal.App.4th 1530, 1534-1538; In re Casey D.

(1999) 70 Cal.App.4th 38, 51.)

       We review an order terminating parental rights for substantial evidence. (In re

Autumn H., supra, 27 Cal.App.4th at p. 576.) If, on the entire record, there is substantial

evidence to support the findings of the juvenile court, we uphold those findings. We do

not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or

weigh the evidence. Instead, we draw all reasonable inferences in support of the

                                               11
findings, view the record favorably to the juvenile court's order and affirm the order even

if there is substantial evidence supporting a contrary finding. (In re Casey D., supra, 70

Cal.App.4th at pp. 52-53; In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) The parent

has the burden of showing there is no evidence of a sufficiently substantial nature to

support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

                                             B

       L.B. contends his rights should not have been terminated because he maintained

regular visitation and Le.B. would benefit from a continued relationship with him. The

juvenile court's finding that the potential harm to Le.B. of terminating parental rights did

not outweigh the potential benefits of adoption, however, was supported by substantial

evidence.

       L.B. argues he did everything possible to maintain his parental role in Le.B.'s life

given his incarceration. Indeed, the juvenile court found L.B. maintained regular

visitation with Le.B. until he was convicted and transferred to a prison outside of San

Diego, and that L.B. loved and cared for Le.B. These facts, however, do not show L.B.'s

bond with Le.B. was so significant that it outweighed the benefits to Le.B. of adoption.

By the time of the permanency planning hearing, Le.B. was in his third foster home and

had been out of his parents care for close to two years. As discussed, Le.B.'s visits with

L.B. were generally positive and Le.B. enjoyed his time with L.B. As L.B. points out, at

the beginning of L.B.'s incarceration, there was at least one visit when Le.B. had

difficulty separating from his father. By the time of the section 366.26 hearing, however,

Le.B. did not ask to see L.B. between visits and had to be coaxed to speak with L.B. on

                                             12
the phone. There was no evidence Le.B. was adversely affected by L.B.'s absence from

his daily life.

       "A biological parent who has failed to reunify with an adoptable child may not

derail an adoption merely by showing the child would derive some benefit from

continuing a relationship maintained during periods of visitation with the parent." (In re

Angel B. (2002) 97 Cal.App.4th 454, 466.) Although L.B. cared about and expressed his

love for Le.B., this was not enough to show he had a " 'significant, positive, emotional

attachment' " such that terminating the parent-child relationship would greatly harm Le.B.

(In re Jason J., supra, 175 Cal.App.4th at pp. 936, 937-938; In re Autumn H., supra, 27

Cal.App.4th at p. 575.)

       Further, the evidence supported the court's finding that the benefits of adoption

outweighed the benefits of maintaining the parent-child relationship. Le.B. was living in

the home of caregivers who were committed to adopting him. He looked to these

caregivers to meet his physical, emotional and psychological needs. In the social

worker's opinion, the minor's need for stability, safety and permanency outweighed any

possible detriment that would be caused by severing the parental relationship. The court

was required to, and did, weigh the strength and quality of the parent-child relationship,

and the detriment involved in terminating it, against the potential benefit of an adoptive

home. We do not reweigh the evidence or substitute our judgment for that of the juvenile

court. (In re Casey D., supra, 70 Cal.App.4th at pp. 52-53.) Substantial evidence

supports the court's finding the beneficial parent-child relationship exception did not

apply to preclude terminating parental rights.

                                             13
                                DISPOSITION

     The orders are affirmed.



                                              MCCONNELL, P. J.

WE CONCUR:



HUFFMAN, J.



NARES, J.




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