Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD224763
DAVIS, Acting P.J.
Appellant Trina S., mother of the minor, S.S., appeals from orders of the juvenile court terminating her parental rights and selecting a permanent plan of adoption for the minor. (Welf. & Inst. Code, §§ 366.26, 395.) On appeal, appellant contends the failure by the juvenile court to apply the statutory exception to termination of parental rights based on the minor’s Indian heritage (§ 366.26, subd. (c)(1)(B)(vi)) requires reversal of the termination order and that termination was not in the minor’s best interests (ibid). We shall affirm.
Hereafter, undesignated section references are to the Welfare and Institutions Code.
Background
On August 22, 2006, the Sacramento County Department of Health and Human Services (DHHS) received a referral involving appellant. Two days earlier, appellant had come to the home of the reporting party, kicked the door about 10 times, and walked off. Appellant asked two neighborhood youths, ages 14 and 15, to get a man, Ron Hawks, from the home. They refused and appellant assaulted them. Hawks came out with the mother of the older youth and restrained appellant, who then drove off, hitting two cars. Appellant was arrested for driving under the influence and with a suspended license.
At the time, there was an open dependency case involving appellant’s older daughter, C.S., born in April 2000. C.S. had been placed with the maternal grandmother subject to a court order that appellant have no overnight visits.
Neither C.S. nor the minor’s father is a party to this appeal.
DHHS subsequently determined that appellant was living in the maternal grandmother’s house with C.S. and the minor, who was born in August 2006. The minor and her sister were taken into protective custody on August 22, 2006, one day after appellant was released from the Sacramento County jail.
DHHS filed a petition alleging jurisdiction under section 300, subdivisions (b) and (j), based on appellant’s recent arrest for driving under the influence, her chronic history of substance abuse and her inability to rehabilitate. The juvenile court ordered the minor detained on August 28, 2006.
The social worker’s reports described a history of dependency actions involving appellant. In December 2000, the juvenile court sustained a dependency petition against appellant involving C.S. under section 300, subdivisions (b) and (g), based on appellant’s alcohol and methamphetamine abuse. She successfully completed services in 2003. A second petition, under section 300, subdivision (b), was sustained in August 2005 because of appellant’s substance abuse.
Appellant admitted to the social worker she had relapsed because of the stress related to problems she was having with Hawks, her boyfriend. She denied kicking the door or hitting the teenagers. Appellant also denied staying with her mother and C.S. in violation of the court order. However, C.S. told a social worker that appellant and the minor stayed in the living room of the maternal grandmother’s house. She related to the social worker “‘it was a secret, and no one was supposed to know, but her mom, grandma, and her baby sister all lived together[.]’” The report also related appellant’s prior misdemeanor and felony convictions for a variety of offenses, including possession of controlled substances, theft, and battery.
On January 18, 2007, a social worker spoke with appellant’s probation officer, who stated that appellant had admitted using an “8-ball” of methamphetamine daily. He said he had recommended that appellant not be sentenced to state prison and that she would probably “have some county jail time.”
Appellant refused to undergo drug testing and did not participate in any substance abuse services. She expressed interest in going into a Native American residential treatment program, but had not completed the required enrollment in the tribe. Appellant had completed anger management counseling and stated she had almost completed parenting classes. However, she frequently did not show up for counseling sessions, causing their termination.
After DHHS received information raising the minor’s possible Indian heritage, pursuant to the Indian Child Welfare Act (ICWA), DHHS sent notice of the dependency action involving the minor to the Bureau of Indian Affairs, the three Cherokee tribes, the three Choctaw tribes, the Pit River Tribe, and the Mechoopda Indian Tribe of the Chico Rancheria (Mechoopda Tribe). The Mechoopda Tribe sent a letter stating that the minor’s maternal great-grandmother (now deceased) had been an enrolled member of the tribe and the minor was eligible for enrollment so long as she provided proof of lineal descent leading back to the maternal great-grandmother. The juvenile court subsequently found the minor was eligible for enrollment in the Mechoopda Tribe. Except for the Eastern Band of Cherokee Indians, all of the other tribes sent letters stating the minor was not eligible for enrollment.
A first amended petition was filed on March 14, 2007, alleging jurisdiction under section 300, subdivisions (b) and (j) due to appellant’s history of substance abuse, her failure to drug test, and the termination of reunification services for appellant in the dependency action involving C.S. On April 10, 2007, the juvenile court sustained the first amended petition, terminated reunification services, and scheduled a selection and implementation (§ 366.26) hearing.
The selection and implementation report dated August 1, 2007, stated that appellant had not visited the minor since the spring of 2007, in spite of repeated efforts by to arrange visitation. An addendum report noted that the maternal grandmother had reported that appellant had called on August 6 and 7, and sounded as if she was under the influence of a controlled substance.
The minor had been placed with her maternal grandmother and C.S., and was closely bonded to both of them. The grandmother clearly expressed a commitment to adopting the minor, had completed her kinship classes, and was in the process of completing the adoption home study.
The ICWA expert, Geni Cowan, Ph.D., filed a written report in which she stated reunification efforts were made but there had been no effort “to connect the family with services that were relevant and consistent with their cultural identity, and that would, then, have likely had greater potential effect.” Dr. Cowan thus concluded DHHS’s efforts were insufficient to promote the family’s reunification. She also stated that there was “some evidence the [minor] may be at risk” if she were with her mother.
The court had previously appointed Nanette Gledhill as the ICWA expert but subsequently severed her from the case.
Dr. Cowan was the only witness who testified at the selection and implementation hearing. Based on her review of the reports and other documents, she recommended guardianship with the grandmother. In support of her recommendation, she stated, “. . . Typically, among Indian tribes, adoption of children away from the tribe is not -- is not desirable. In my mind, in my opinion, the termination of [appellant’s] parental rights would sever the [minor’s] relationship with [the] tribe.” She felt there was insufficient evidence “to justify dismantling that Indian family and disconnecting the [minor] from [her] tribe.” Even though the minor would likely remain with her maternal grandmother, she stated, “there would be no further connection” to the tribe if parental rights were severed, while the connection would remain if they were not. She also noted the minor’s connection to the tribe had been traced through the maternal grandfather. Appellant objected to the termination of parental rights, arguing that adoption would sever the minor’s bond to the tribe and thus justified finding an exception to adoption.
The juvenile court adopted the recommendation of DHHS and terminated appellant’s parental rights with adoption as the permanent plan, finding beyond a reasonable doubt that continued custody with appellant would likely result in serious emotional or physical damage to the minor and that termination was in the minor’s best interest.
Discussion
Appellant contends the juvenile court committed reversible error in failing to apply the Indian child exception to adoption contained in section 366.26, subdivision (c)(1)(B)(vi) (formerly § 366.26, subd. (c)(1)(F)). She contends that terminating the parental relationship would sever the minor’s bond with the tribe, and that the juvenile court’s determination was not in the minor’s best interest and is not supported by substantial evidence.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
Before the juvenile court may find an exception to adoption, a parent must provide a “compelling reason for determining that termination would be detrimental to the child” due to one of several specific circumstances. (§ 366.26, subd. (c)(1)(B).) One of the circumstances under which termination of parental rights would be detrimental to the minor is: “The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to: [¶] (I) Termination of parental rights would substantially interfere with the child’s connection to his or her tribal community or the child’s tribal membership rights. [¶] (II) The child’s tribe has identified guardianship, long-term foster care with a fit and willing relative, or another planned permanent living arrangement for the child.” (§ 366.26, subd. (c)(1)(B)(vi).)
The parent has the burden of establishing the existence of any circumstances that constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373.) Appellant bears a heavy burden of proof. “Because a section 366.26 hearing occurs only 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 (Jasmine D.).)
While appellant asks us to apply the substantial evidence standard, we review the juvenile court’s ruling declining to find an exception to termination of parental rights for abuse of discretion. (Jasmine D., supra, 78 Cal.App.4th at p. 1342.) Although several opinions have applied the substantial evidence test (see In re Autumn H. (1994) 27 Cal.App.4th 567, 576; In re Zachary G. (1999) 77 Cal.App.4th 799, 809; In re Derek W. (1999) 73 Cal.App.4th 823, 827), we conclude denial of an exception to termination is more appropriately reviewed under the abuse of discretion standard.
In declining to apply an exception to adoption, “[t]he juvenile court is determining which kind of custody is appropriate for the child. Such a decision is typically reviewable for abuse of discretion.” (Jasmine D., supra, 78 Cal.App.4th at p. 1351; see In re Stephanie M. (1994) 7 Cal.4th 295, 318 [custody determination in dependency proceedings reviewed for abuse of discretion].) However, we also recognize there is no significant practical difference between the two standards. (See Jasmine D., supra, 78 Cal.App.4th at p. 1351.)
“‘“The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court.”’” (Jasmine D, supra, 78 Cal.App.4th at p. 1351.)
DHHS contends the exception does not apply because ICWA was not applicable to the hearing. It argues the Mechoopda Tribe’s offer of enrollment was subject to the condition that the minor prove her lineal descent to the maternal great-grandmother, and since there is no evidence that such proof was provided, the minor was not an enrolled member of the tribe and therefore ICWA does not apply.
We reject the contention. The tribe had indicated the minor was eligible for enrollment and the court found she was eligible for membership. There was clearly the potential for a bond with the tribe, and nothing in the exception predicates its application on a finding that ICWA applies.
The primary support for appellant’s claim is the testimony and report of Dr. Cowan, who opined that terminating parental rights would sever the relationship with the tribe, which she concluded was not justified by the evidence. This does not satisfy appellant’s heavy burden of finding an exception to the preferred course of adoption.
There is no evidence of any relationship between the minor and the Mechoopda Tribe. Although notified of the section 366.26 hearing and DHHS’s recommendation of termination and adoption, the tribe never intervened, requested a transfer to the tribal court, or expressed any opinion on whether the minor should be adopted.
There is no evidence appellant has maintained or had any contact with the tribe. When provided with an opportunity to enter a Native American treatment program, appellant declined to complete the required tribal enrollment. Having failed to visit the minor since spring 2007, appellant did not maintain a significant bond with the minor. Beyond the bare assertion of the expert, who never contacted the Mechoopda Tribe, nothing in the record suggests that terminating appellant’s parental rights will so substantially interfere with the minor’s relationship with the tribe as to provide a compelling reason for maintaining the parental relationship.
The juvenile court placed the minor with the maternal grandmother, who had expressed a strong interest in adoption, was close to satisfying the requirements for adopting, and was already the guardian of the minor’s sister. This satisfied ICWA’s preferred adoptive placement with members of the child’s extended family. (25 U.S.C. § 1915(a)(1); (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 36-37 [104 L.Ed.2d 29].)
Adoption will not sever the sibling relationship, as appellant contends. “We have not found any provision in the statutes, nor has any been brought to our attention that declares a child loses his or her status as a sibling when the child has been adopted.” (In re Valerie A. (2006) 139 Cal.App.4th 1519, 1523.) As the minor is being placed in the same home with her sister, their relationship has not been materially altered.
Appellant has not met her heavy burden of proof. Accordingly, we conclude the decision by the juvenile court to reject application of the section 366.26, subdivision (c)(1)(B)(vi) was not an abuse of discretion.
For the same reasons, we also conclude the juvenile court’s decision rejecting the exception was supported by substantial evidence.
Disposition
The judgment is affirmed.
We concur: HULL, J., ROBIE, J.