Opinion
E081183
11-29-2023
In re A.T. et al., Persons Coming Under the Juvenile Court Law. v. N.V., Defendant and Appellant. RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent,
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant. Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. No. SWJ1900604, Sean P. Crandell, Judge. Conditionally reversed and remanded with directions.
Cristina Gabrielidis, under appointment by the Court of Appeal, for Defendant and Appellant.
Minh C. Tran, County Counsel, Teresa K.B. Beecham and Julie K. Jarvi, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
McKINSTER ACTING P.J.
The juvenile court terminated defendant and appellant N.V.'s (mother) parental rights as to A.T. (born September 2016), S.T.2 (born February 2019), and I.T. (born June 2020, collectively "minors"). On appeal, mother contends the court erred in declining to apply the sibling relationship exception to termination of parental rights. Mother additionally maintains both the juvenile court and plaintiff and respondent, the Riverside County Department of Public Social Services (the department), committed reversible error by failing to comply with their duty of inquiry with respect to the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.). We conditionally reverse and remand the matter for ICWA inquiry compliance.
Minors X.V. (born November 2011), S.T.1 (born February 2013), and M.T. (born September 2017) are not subjects of this appeal. We will refer to all the children who were the subject of the dependency proceedings below as "the children." When discussing only the children who are the subjects of this appeal, we will refer to them as "minors."
I. FACTUAL AND PROCEDURAL BACKGROUND
The social worker reported that she had received several referrals for the family and had been working with them continuously since June 2019: "The home was found in deplorable conditions. The family has been asked to clean the home on multiple occasions and the home has continued to worsen. There is a concern with the condition of the home as it poses as a safety threat to the children, as they are easily getting hurt."
On September 25, 2019, the department received a referral alleging that mother and R.T. (father) would yell at each other and the children. Mother would beat up father. There were drugs in the home, which the parents may have been using. Father was an alcoholic; the home was a mess.
None of the fathers are parties to the appeal. As the court noted, "we have a lot of children and a lot of different fathers." "We had to run down multiple potential fathers, do DNA testing." "[A] good chunk of . . . time has been eaten up with DNA testing, the birth of another child, and COVID."
On September 27, 2019, the department received another referral alleging that S.T.1 and X.V. had missed 16 out of 26 school days. School personnel had been unable to contact mother for three weeks. School personnel requested police conduct a welfare check on the home.
On October 4, 2019, the social worker conducted a visit to S.T.1 and X.V.'s school; X.V. had been absent from school 14 days and present three days. S.T.1 had been absent from school 15 days and present three days.
On the same day, the social worker visited the home. Mother was not present. The social worker spoke with father who said he had just returned to the home the day before after a month's absence. The home was "in complete[] disarray. The floors were dirty, stained[,] and had pieces of dry cereal on the floor." Fast food wrappers, dirty underwear, broken eggs, and beer cans were scattered around the home. S.T.1 told the social worker she had burned herself while cooking. She said father and her aunts, V. and A.M., had been taking care of her.
Father admitted he had imbibed five beers already that day. While speaking with father, the paternal aunt came into the home to let the social worker speak with mother on the phone. Mother said she would be home within two hours.
X.V. said there was not enough food in the home. He had a two-inch long, red, inflamed, slightly deep wound on his leg. He said it had been caused when mother hit him with a broom. S.T.1 said it had happened a week earlier. M.T. had injuries on his left eye, upper eyelid, and knee.
The family had seven prior referrals dating back to 2005, including three that were deemed unfounded and four that were deemed inconclusive. Three of the prior referrals were in 2019. Mother had four prior convictions, three felonies and one misdemeanor.
The social worker contacted the sheriff to obtain an officer's assistance in taking the children into protective custody. The officer said that he had been to the home previously and was familiar with the family.
Prior to the officer's arrival, mother came home. She stated that she left the children in the care of the paternal aunt, not father. The paternal aunt confirmed she was staying in the home with the children. Mother said she had a no negative contact order with father. She did not know what he was doing in the home.
The social worker spoke with father's brother, I.T., who said mother had contacted him to ask him to care for the children. He contacted father to care for the children when mother failed to return home.
On October 5, 2019, the social worker, accompanied by a sheriff's deputy, arrived at the home to take the children into protective custody. The officer had to force open the screen door and threaten to handcuff mother unless she opened the door. Mother let them in, and the social worker placed the children into protective custody.
Mother and father denied having Indian ancestry. The social worker recommended the court find ICWA does not apply.
S.T.1 was assessed as medically fragile. She was later placed in "a Medical Fragile home."
On October 7, 2019, the social worker spoke with the maternal grandmother, who reported that mother had been diagnosed with bipolar disorder and Schizophrenia; mother was supposed to be on medication.
On October 8, 2019, the department filed a Welfare and Institutions Code section 300 petition alleging that father abused controlled substances (b-1), mother had unresolved mental health issues (b-2), parents failed to provide adequate supervision (b-3), parents neglected the medical needs of the children (b-4), mother used excessive physical discipline (b-5), parents neglected the educational needs of the children (b-6), parents engaged in acts of domestic violence in the presence of the children (b-7), parents kept the home in deplorable and unsanitary conditions (b-8), parents had a history with the department (b-9), father failed to provide (b-10 &b-11), X.V.'s father's whereabouts were unknown (g-1), and father's whereabouts were unknown (g-2).
All further statutory references are to the Welfare and Institutions Code.
The department filed several amended petitions that did not substantially alter the allegations in the original petition, other than changing or adding names for the children's fathers and adding I.T. when she was born.
At a hearing on October 9, 2019, the court inquired whether mother's statement that she had no Indian ancestry was true; mother responded that it was. The court asked the same question of father, who answered that he did not have Indian ancestry insofar as he was aware. The court adopted the ICWA orders and findings set forth in the detention report. An unnamed maternal aunt was present in court.
The court provided parents with Judicial Council Forms, form ICWA-020, and ordered them to complete them. Parents completed the ICWA-020 that day, noting that they had no Indian ancestry as far as they knew.
The juvenile court detained the children. The court noted that it was recalling and quashing "the previously issued protective custody warrants." The court ordered weekly sibling visitation.
In the jurisdiction and disposition report filed October 28, 2019, the social worker recommended the court find the allegations in the petition true, remove the children, and provide parents reunification services. The children had weekly visitation with each other every Monday and Wednesday while they visited with mother. The social worker recommended the court find ICWA did not apply.
In the December 5, 2019 addendum report, the social worker noted that mother had informed the social worker that mother was now pregnant. Father again denied any Native American descent. The social worker again recommended the court find ICWA did not apply.
On January 8, 2020, the social worker filed another addendum report in which she recommended the court authorize an ICPC for the maternal aunt B.B. who lived in Utah and with whom the social worker had left a voicemail. The children had been placed in three different homes: "A home has not been found to place the children together."
In an addendum report filed February 11, 2020, the social worker reported that X.V. and M.T. had been placed together. A.T. and S.T.2 had been placed in a separate home together. S.T.1 had been placed alone in a medically fragile home.
On February 18, 2020, M.T.'s father denied Indian heritage. On April 28, 2020, X.V. and M.T.'s caregiver reported that were thriving in their placement. The caregiver for A.T. and S.T.2 reported they were doing well.
In an addendum report filed June 12, 2020, the social worker reported that mother had given birth to I.T. On July 15, 2020, the department filed an amended petition adding I.T. In the detention report for I.T., the social worker recommended that the court find ICWA did not apply. Mother and father both, again, denied any Native American ancestry. On July 16, 2020, the court detained I.T. The court found ICWA did not apply.
The minute orders reflect the court recalled or quashed the protective custody warrant issued for I.T.
In an addendum report filed July 29, 2020, the social worker reported that S.T.2 appeared to be "well bonded to the caregiver." A.T. "appears to be well adjusted to the home and well bonded to the caregiver." S.T.1 reported she liked living in the home and that things were going well.
At a hearing on July 29, 2023, M.T.'s father provided the names and phone numbers for his mother and sister, A.Z. and M.B. In a September 3, 2020, addendum report, the social worker reported that M.T.'s paternal aunt, E.B. (paternal aunt), had been approved for placement of M.T. The paternal aunt had been present during an emergency child family team meeting on August 25, 2020, concerning M.T.'s behavioral problems. The social worker reported the caregiver informed her S.T.2 and A.T. were doing well in their placements. At a hearing on September 3, 2023, the department informed the court they intended to place M.T. with his paternal aunt.
The court later found M.T.'s father the biological father of I.T. as well.
In an addendum report filed October 16, 2020, the social worker reported that M.T. "was smiling and laughing at the videos he was watching. The caregiver stated he has been adjusting so well to the home, and is excited to have his little sister come as well." On September 23, 2020, the department placed I.T. with M.T. in the home of the paternal aunt.
In the addendum report filed November 24, 2020, the social worker reported that I.T. "was smiling and making noises when the caregiver spoke to her. The [paternal aunt] reported both children are doing well, . . ."
At a hearing on November 30, 2020, the children's attorney noted that she had spoken with the paternal aunt. The court questioned whether the department had inquired about M.T. and I.T.'s father's Indian ancestry. Counsel for M.T and I.T.'s father and the clerk of the court indicated that their father had filed an ICWA-020 form on February 18, 2019. The court inquired directly of M.T and I.T.'s father: "based on your previous paperwork, you have no Indian ancestry; is that true?" He responded, "That's correct." The court found the allegations in the petition true, took jurisdiction of the children, removed the children from the parents, found that ICWA did not apply, and granted parents reunification services. The court granted the request to grant an ICPC for the state of Utah with B.B., the maternal aunt.
In the March 26, 2021, six-month status review report, the social worker recommended the court continue parents' reunification services. X.V. had been placed in a new home on December 16, 2020. "The Department made active efforts to locate a home within their school of origin and to also have the children all placed together. A home has not been found to place the children together." S.T.1 "is considered medically fragile due to her special medical needs."
"According to the paternal aunt, [mother] was telling [M.T.] that she had got them a puppy for when they returned home. The paternal aunt reported she told [M.T.] to go get something from the other room. The paternal aunt reported that she advised the mother to not make the children promises because she does not know what is going to happen at her next hearing. The paternal aunt reported that [mother] became upset ...."
The children participated in virtual sibling visits every week. X.T. missed virtual visits with his siblings due to his placement change in December 2020. The social worker became aware of the sibling visitation issue and made arrangements with S.T.1's caregiver to include X.T. by providing her X.T.'s caregiver's contact information. "I am being told that the virtual siblings [visits] are going well and there are no concerns."
At a hearing on April 5, 2021, the children's counsel noted that the children were in four different placements: X.T. "is in a placement. [S.T.1] is in a placement. [M.T.] and [I.T.] are with a relative, and the two remaining girls are in a foster home." The department was having difficulty setting up in person visitation between the children and mother.
The court observed "In other words, mom could have - as long as mom is deemed safe, she could visit with each group of children, one at a time. I get it. If they were all there together, it might be an issue, but each child visiting with mom separately, each household, I don't see that issue different than any of the other issues we're dealing with. Okay." Mother's counsel noted, "It appears that three of the kids are medically fragile, maybe now only two of them. It looks like from the information in the report [M.T.] may still be medically fragile."
In an addendum report filed May 5, 2021, the social worker recommended parents receive an extended 24 months of reunification services. "The Department made active efforts to find a home to place the children together. The Department was unable to locate a foster home that would take all children because the children require a higher level of care." "The only concern reported from the paternal aunt was that [mother] accidentally gave [M.T.] a nose bleed." At the hearing on May 5, 2021, the court granted parents continued reunification services.
In the 12-month status review report filed on October 8, 2021, the social worker reported that on September 15, 2021, M.T. and I.T.'s father again denied having Indian ancestry; on September 27, 2021, mother also, again, denied having Indian ancestry. The department had been unable to inquire of father because he failed to return multiple calls. On August 24, 2021, the social worker spoke with the paternal aunt regarding M.T. and I.T.
At the hearing on October 8, 2021, at which the maternal aunt was present, the court ordered mother to drug test in preparation for overnight visits or a return to family maintenance services.
In a section 342 detention report filed on November 29, 2021, the social worker reported that during a visit with Mother, I.T. fell onto a weight-bar, hitting her head. "Mother told an aunt that this is what occurred but she told the grandmother that [I.T.] tripped when she walked into the kitchen from the garage." On October 29, 2021, the social worker called the paternal aunt to assist her with mother when attempting to get her to drug test. On November 8, 2021, the social worker received the result of the test which reflected mother tested positive for methamphetamine. On November 19, 2021, the social worker held an emergency meeting that included the maternal grandmother.
"The Department made active efforts to have all the children placed together; however, a home has not been found to place the children together that would meet each child's specific needs." On November 26, 2021, mother, yet again, denied having any Native American ancestry. On November 28, 2021, M.T. and I.T.'s father, again, denied having any Native American ancestry. The department was unable to inquire with father regarding his Native American ancestry because he had still not made himself available to the department.
On November 29, 2021, the department filed a section 342 subsequent petition alleging mother was abusing controlled substances (b-1) and had an active case from which she failed to benefit (b-2). The petition reflected that the social worker had no reason to believe any of the children had Indian ancestry.
At a hearing on November 30, 2021, at which unnamed maternal and paternal aunts were present, the department requested the court dismiss the section 342 petition, which the court did. The department was now recommending termination of mother's reunification services. The court set the matter for a contested hearing.
On January 5, 2022, the paternal aunt filed a section 388 petition requesting the court terminate parents' reunification services. In an addendum report filed January 7, 2022, the department requested the matter be continued to monitor mother's visits for further assessment. On December 28, 2021, X.T. reported feeling safe in his placement. On December 30, 2021, S.T.1, A.T., and S.T.2 all reported "feeling safe in their placement and that they liked their placement."
The paternal aunt appeared at the hearing on January 12, 2022. Mother's counsel noted that visitation between mother and the children did not happen all at the same time: "They have broken them up. Eventually, I think they all visited a couple of times together. I'm not sure what they intend on doing at this point." Mother was also "concerned because sibling visits haven't happened as well." Minor's counsel noted the children only had contact with each other "when mom was having visits." The court ordered sibling visitation.
On February 2, 2022, the department filed an addendum report in which they recommended terminating parents' reunification services. Mother had failed to appear at three of four scheduled drug tests ordered by the court. "Due to Covid concerns, the Department has been unable to secure visits for the mother and all six children together, as the past few weeks four of the six children had been quarantined and the mother believed she was exposed to [X.V.], who tested positive." "The children all appeared to [be] clean and well cared for in their respective placements."
X.V. reported feeling safe in his placement but wanting his family back together. M.T. and I.T. "appeared to be happy and safe in their placement." The paternal aunt reported she was willing to provide M.T. and I.T. "a safe and stable home."
At the hearing on February 2, 2022, the social worker testified mother failed to show for all scheduled drug tests. Mother had visited with X.V., A.T., and S.T.2; the other children were not present due to having or being exposed to COVID.
The paternal aunt testified in favor of her request for a temporary restraining order against mother, which the court granted. In the February 7, 2022 addendum report, the social worker reported he had conducted a visit of mother's home during which mother reported that her aunt, who was X.V.'s current caregiver, would help provide childcare if the children were returned to mother's care. On December 10, 2021, mother drug tested positive for THC, methamphetamine, and amphetamines.
At the 24-month hearing on February 7, 2022, the children's counsel offered stipulated testimony that if "called to testify, they would testify that they enjoy their visits with Mom and they want to go home to her." The paternal aunt testified. The court terminated parents' reunification services and set the matter for a section 366.26 hearing. The paternal aunt withdrew her section 388 petition. On February 18, 2022, the court granted the paternal aunt a restraining order against mother for one year.
On May 26, 2022, the social worker filed the section 366.26 selection and implementation report, requesting a 90-day continuance to complete an adoption assessment. The paternal aunt "recently disclosed that she is interested in only adopting [M.T.] at this time as she informed the Department that having the two kids is too much for her to handle. However, she agreed to keep [I.T.] until another placement is located. The Department is currently assessing [A.T.] and [S.T.2's] caregiver for permanency as to [I.T], as their caregiver reported an interest in adopting [I.T.] as well."
"At this time, the children, [S.T.1], [A.T.], and [S.T.2], are all thriving well in their prospective adoptive placement homes. These placements remain stable and appropriate for all of their needs and the caregivers are in the process of adoption. The children, [X.V.], [M.T.] and [I.T.], are doing well in their separate placements at this time. These placements are currently meeting their needs as well. During this review period, all of the children have shown no visible signs of abuse or neglect and have consistently been found happy and safe each visit. The current caregivers for [S.T.1], [A.T.], [M.T.] and [S.T.2], are committed to providing [] safe, stable, and loving home[s] for them for as long as needed and are ready to move forward with Adoption. Permanent placement is still being sought for the children, [X.V.] and [I.T.]."
At the hearing on June 13, 2022, the maternal grandmother was present. Upon stipulation of counsel, the court continued the matter.
In the September 20, 2022, addendum report, the social worker recommended the court terminate parents' parental rights as to minors. A.T. and S.T.2 had been placed with their prospective adoptive parents on October 5, 2019. I.T. had been placed with A.T. and S.T.2's prospective adoptive parents on June 15, 2022.
"The prospective adoptive mother informed this writer that they now consider the girls like their daughters and they cannot see the future living without them. The prospective adoptive father stated that he wants to be able to provide the girls with a safe and loving home where all of their needs are going to be met. The prospective adoptive mother stated, 'We love them! They have robbed our hearts and they are so innocent and we always want to protect them.'" "The prospective adoptive parents report they call them 'mommy', 'mama', 'daddy' or 'papa.' They now look to them as their parents."
"The prospective adoptive parents strongly believe that they can provide the children with the stability, love, and the attention they need to thrive." "The prospective adoptive parents also reported . . . that they are good friends with the caretakers that have [S.T.1] and they want all of the siblings to grow up together as siblings should. The prospective adoptive parents report that they are committed to having the children become permanent members of their family and are willing and able to provide a permanent and loving adoptive home for all three of them."
"The prospective adoptive parents have the capability to meet all of the girls' needs both emotionally and physically. They appear to be a stable and responsible couple who are able to provide a safe, nurturing and permanent environment for the children throughout the coming years. They appear to have a solid understanding of parenting techniques and appropriate forms of correction to use with the child as she grows. They have attended many trainings through their RFA process and have an understanding of the special parenting techniques inherent with foster care and adoption. The prospective adoptive parents have taken on the role of being the children's parents. They have established daily routines, which enables them to meet the children's physical, medical, emotional, and developmental needs."
A.T. And S.T.2 "appear to have adjusted well to the home and appear bonded to the prospective adoptive parents. It appears that both of the girls have adjusted well to the daily routine of the prospective adoptive parents' home and appear very comfortable in the home environment." All three children appeared "bonded to both of the prospective adoptive parents and the other family members who were present in the home. This was evidenced by the comfort and ease by which the girls would go up to the prospective adoptive parents and how comfortably they all moved around the home." "The three girls appear to be happy living in the home and they appear to be bonded to both of the prospective adoptive parents and the other family members present." I.T. "is now considered 'the baby of the house' and they cater to all of her needs and 'spoil her.'" "The prospective adoptive parents reiterated to this writer that the girls are going to grow up with [their] older sister as they know the importance of trying to keep adopted siblings together."
The maternal grandmother appeared at the hearing on October 5, 2022, at which the department requested a 120-day continuance. The court granted the continuance.
As the court noted, "This record is extensive. Case age is 1,993 days." And, therefore, "The reports are voluminous."
In the post-permanency status review report filed December 5, 2022, the social worker recommended the court order sibling visitation for all six children at least once monthly. "During this reporting period, there has been no additional information provided to the Department to suggest the Indian Child Welfare Act may now apply."
"The mother and the respective fathers' current circumstances are unknown since they have not maintained in contact with the Department [since] the Family Reunification services were terminated on February 7, 2022." S.T.1 remained in a medically fragile placement. "The children....are currently in safe and stable placements with caregivers who are meeting all [] their needs at this time." "The children are well cared for and have a bond to their caregivers. The caregivers have demonstrated their commitment in continuing to provide the children with a safe, nurturing, and stable home environment. The caregivers of the [five] children, [S.T.1], [A.T.], [M.T.], [S.T.2], and [I.T.] want to provide them with permanency in the form of adoption."
The maternal grandmother was present at a hearing on December 12, 2022. X.V. had been placed with the maternal grandmother previously, but was removed when the maternal grandmother lost her foster license. The court spoke directly with the maternal grandmother. The court ordered the department to interview the maternal grandmother.
Counsel for X.V. noted, "I would, though, also join in the recommendation from the Department as to the sibling visits. I think I raised this at the last hearing. We were trying to get a sibling visit set up for [X.V.s] birthday .... I know that's been just a difficult situation because of the different family that the children are with, but I, again, would just join in the request that the sibling visits be set up. If it takes one of the foster parents to be the supervisor, that that be allowed so that the siblings can have their visits." Mother's counsel joined the request. The court ordered the department to arrange for one sibling visit in December and another in January.
In the addendum report filed January 27, 2023, the social worker recommended the court terminate parents' parental rights. "The children have sibling visits twice a month ...." The children had visits with one another four times since the last hearing. "The children seemed happy to be together. They were playing with each other and running around."
The paternal aunt and maternal grandmother appeared at the contested section 366.26 hearing on February 1, 2023. The department requested a continuance for minors.
Counsel for X.V. stated, "he is very interested in maintaining a sibling relationship with them." Mother's counsel argued the court should not terminate parental rights as to M.T. because he "has several siblings. He is in a placement all by himself. His other siblings are in three separate placements. He has had some sibling visits. Those sibling visits go very well. He does have a bond with his siblings. The information in the report is that the sibling visits indicate that there is a lot of affection, laughing. It looks like there is a bond." Termination of parental rights would "not only terminate[] the relationship with the mother but also with the other children."
M.T.'s counsel argued that the paternal aunt "understands the importance of maintaining those sibling relationships. She knows that [M.T.] has a bond with his siblings. She wants to continue to nurture that and ensure that the siblings are able to maintain contact." "And I believe the other caretaker has ensured that these children are having sibling visits. It does indicate in the reports that the children have been able to maintain visitation."
X.T.'s counsel reported, "He wants his siblings to be happy in their placement. Again, his interest was in maintaining his sibling relationship. It is my belief that he would be able to do that with [M.T.] staying in his present placement." "They have been having sibling visits. It did take quite a while for those to be put together, but they are having sibling visits now." "I believe that he probably would have more of a potential to have sibling visits with the current caregivers than he would if [M.T.] was placed back with mother."
Mother's counsel argued the court should "consider the sibling exception, basically that's the interference with siblings' relationship exception that essentially provides for the current preservation of sibling relationship." "In this case that is a very important factor, a very important issue based on six different children being in four different homes. I think, yes, they may be in good homes, yes there could be additional sibling visits in the future, but what's paramount is the sibling bond, the connection that they have." "I don't think there is any denial by anyone that they do have a sibling connection, that the visits go excellent, that they are happy with each other. They play together. They are affectionate with each other, give each other hugs, all those things at the visitation."
M.T.'s counsel responded, "the reports are replete with information that these caretakers all want to ensure that these children maintain a relationship." "[T]he paternal aunt indicated she's willing and she is supportive of [M.T.] continuing to have a relationship with his siblings." "It's my understanding also that these caretakers do talk. They have formed a relationship to where they can communicate with each other. And it's my understanding that they are willing to continue to ensure that these children have visitation with each other." Counsel for minors noted, "It does appear that these caretakers are consistently ensuring that the visitation is occurring, and I anticipate that the sibling visitation will continue even if the Court continues with termination of parental rights today."
The court noted that none of the children's counsels were opposing termination and adoption. "The reality is they need permanence, happiness, stability, and a place to call home, a person to call mom, and a person to call dad that they can rely on. Notwithstanding that, these children do seem to get along well." "When I look at the totality of the evidence in this case, I don't find that there is a compelling reason to conclude termination of parental rights would be detrimental to [M.T.] due to interference-substantial interference with a sibling relationship." "In fact, all the evidence indicates that the caregivers would be willing to allow the children to have continued contact with one another. Even if that were not the case, I would find that, given the nature of their relationship, the permanence in the current home would outweigh the nature of the sibling relationship." The court terminated mother's parental rights as to M.T. and S.T.1. The court continued the section 366.26 hearing as to minors.
In the addendum report filed April 4, 2023, the social worker requested the court terminate parents' parental rights as to minors. "The children continue to have sibling visits twice a month ...." Minors were "together in a prospective adoptive home where they are safe, stable and loved. Preliminary Adoptive Assessments have been completed and filed for these three children and they deserve permanency in the form of adoption."
At the hearing on April 10, 2023, counsel for the department noted that the department had received a number for I.T.'s father from the paternal grandmother and left multiple voicemails regarding the hearing. The maternal grandmother and uncle were both present. The court continued the matter again.
At the hearing on April 25, 2023, the department requested the court proceed with termination of parental rights as to minors. Mother's counsel requested the court "consider the sibling-relationship exception." "[S]ince the kids are in multiple placements and they are separated and being-potentially being adopted by different caretakers, it does interfere with the sibling relationship, and, therefore, I would ask the Court, for the record, to not terminate parental rights; rather, set a plan of legal guardianship."
The department noted, "My understanding is that the siblings do have regular visitation, and the plan is for that to continue, so I don't believe that any of these exceptions apply." Minors' counsel observed, I "don't believe that the sibling exception applies. These children have been in the home for quite some time and do regularly have visits with their other siblings. There are three siblings all placed together, and I do think it's appropriate to proceed with termination of parental rights." Counsel for the department replied, "It does not appear that the sibling exception would outweigh the need for these three minors to have permanency in their lives. Other siblings have already had termination of parental rights, which would already negate some of the weight that that exception may have for the Court, and it is in the minors' best interest at this time to proceed with termination of parental rights."
The court found minors were going to be adopted and that their need "to have permanency outweighs any issues that might arise based upon them being placed in separate houses." Therefore, the court terminated parents' parental rights as to minors.
II. DISCUSSION
A. Sibling Relationship Exception
Mother contends the court erred in finding that the sibling relationship did not apply. We disagree.
"The purpose of the sibling exception is to preserve long-standing sibling relationships that serve as 'anchors for dependent children whose lives are in turmoil.' [Citation.]" (In re Elizabeth M. (2018) 19 Cal.App.5th 768, 781.) "'[T]he concern is the best interests of the child being considered for adoption, not the interests of that child's siblings.' [Citations,] 'The court must balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer.' [Citations.]" (Ibid.)
"The parent has the burden of proving the statutory exception applies. [Citations.]" (Elizabeth M., supra, 19 Cal.App.5th at p. 781.) "When the juvenile court concludes the benefit to the child derived from preserving the sibling relationship is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion. [Citations.]" (Id. at p. 782.)
Here, the court determined that a beneficial sibling relationship existed between the children. Nevertheless, the court determined that the sibling relationship would continue to be preserved even if it terminated mother's parental rights. Even if it did not, the court found that the minors' best interests would be met by the permanency provided by adoption in their current placement. Thus, we review the court's determination for abuse of discretion.
We discern no abuse of discretion. S.T.2 was less than eight months old when the department took her into protective custody. I.T. would not even be born for another seven months. Thus, two of the three minors had little or no substantive relationship with their other siblings when they were taken into protective custody.
Moreover, all three minors were placed together in the same prospective adoptive placement, a fortuitous situation the stability of which minors' best interest strongly supported continued maintenance of through adoption. Furthermore, mother's parental rights as to two of the children had already been terminated, which drastically reduced the amount of sibling visitation that could have been maintained through a guardianship for minors.
Finally, the court's determination that the stability and permanency provided by adoption outweighed preservation of the sibling relationship finds ample support in the record. Social workers repeatedly reported that all the children felt safe, were "thriving," and doing well in their placements. Minors were "well adjusted to the home and well bonded to the caregiver." At some point, the placements for the children became so longstanding and stable that the department believed it would be in their best interests to be adopted in those homes.
Minors called the prospective adoptive parents "mommy" and "daddy." The prospective adoptive parents were willing to provide minors a permanent home in which they could grow up with all their siblings. Minors were bonded to both prospective adoptive parents. Thus, the court's finding that preserving the sibling relationship was not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption was well within its discretion.
We agree with mother that the sibling visitation did not occur as regularly as would have been ideal. However, there were good reasons for the inability to maintain consistent sibling visitation. At one point, due to Covid concerns, the department had been unable to secure visits for mother and all six children together, as four of the six children had been quarantined and mother believed she was exposed to X.V., who tested positive.
Early on the children all had visitation twice weekly with one another when visiting with mother. The children later participated in virtual sibling visits weekly. The department made repeated attempts to find a placement for all of the children together, but encountered understandable difficulties in placing all five or six children in the same home. X.V. and M.T. were originally placed together. M.T. and I.T. were later placed together with the paternal aunt. A.T. and S.T.2 were placed together on October 5, 2019. I.T. was later removed from the paternal aunt and placed with A.T. and S.T.2's caregiver on June 15, 2022. S.T.1 had to be placed in a specialized home for someone deemed "medically fragile."
However, the children later had sibling visits twice monthly. The paternal aunt intended to continue to ensure sibling visitation. X.T.'s counsel believed that sibling visitation would be better ensured if the children remained in their current placements. M.T.'s counsel noted that, "the reports are replete with information that these caretakers all want to ensure that these children maintain a relationship." "It's my understanding also that these caretakers do talk. They have formed a relationship to where they can communicate with each other. And it's my understanding that they are willing to continue to ensure that these children have visitation with each other."
Counsel for minors noted, "It does appear that these caretakers are consistently ensuring that the visitation is occurring, and I anticipate that the sibling visitation will continue even if the Court continues with termination of parental rights today." The department noted, "My understanding is that the siblings do have regular visitation, and the plan is for that to continue, so I don't believe that any of these exceptions apply." Minors' counsel observed, "I don't believe that the sibling exception applies. These children have been in the home for quite some time and do regularly have visits with their other siblings. There are three siblings all placed together, and I do think it's appropriate to proceed with termination of parental rights." Thus, there was every reason to believe that the sibling visitation would be maintained not just despite, but because of minors' adoption. The court acted within its discretion.
B. ICWA
Mother contends both the juvenile court and the department committed reversible error by failing to inquire of extended family members regarding their Indian ancestry. The department maintains that because minors were taken into custody pursuant to a protective custody warrant, no inquiry of extended family members was required. Thus, the department argues the inquiries with respect to parents was sufficient for the court to find that ICWA did not apply. We agree with mother.
" '" 'Federal regulations implementing ICWA . . . require that state courts "ask each participant in an emergency or voluntary or involuntary child-custody proceeding whether the participant knows or has reason to know that the child is an Indian child." [Citation.] The court must also "instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child." '"' [Citations.] 'State law, however, more broadly imposes on social services agencies and juvenile courts (but not parents) an "affirmative and continuing duty to inquire" whether a child in the dependency proceeding "is or may be an Indian child." '" (In re J.C. (2022) 77 Cal.App.5th 70, 77.)
"[S]ection 224.2, subdivision (b), requires the child protective agency to ask 'the child, parents, legal guardian, Indian custodian, extended family members, others who have an interest in the child, and the party reporting child abuse or neglect, whether the child is, or may be, an Indian child and where the child, the parents, or Indian custodian is domiciled.' [Citations.] Although commonly referred to as the 'initial duty of inquiry,' it 'begins with the initial contact' [citation] and continues throughout the dependency proceedings." (In re J.C., supra, 77 Cal.App.5th at p. 77.)
" '" 'The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings.'" [Citation.] "If the court makes a finding that proper and adequate further inquiry and due diligence as required in [section 224.2] have been conducted and there is no reason to know whether the child is an Indian child, the court may make a finding that [ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the evidence." '" (In re J.C., supra, 77 Cal.App.5th at p. 78.)
"[T]he way a child is initially removed from home has no bearing on the question of whether they may be an Indian child." (In re Delila D. (2023) 93 Cal.App.5th 953, 962, review granted Sept. 27, 2023, S281447 (Delila D.).) "There is no practical difference between children taken by warrant and those taken without a warrant, and so there is no reason to distinguish between them for ICWA inquiry purposes." (Id. at p. 972.) "[I]t simply doesn't make sense to apply different initial inquiries depending on how the child was initially removed from home, as that procedural happenstance has nothing to do with a child's ancestry." (Id. at p. 975.)
"[T]he Legislature enacted section 224.2[, subdivision] (b) to impose on departments a broad duty to inquire that applies regardless of how a child is initially removed from home." (In re Delila D., supra, 93 Cal.App.5th at p. 975.; accord, In re Jerry R. (2023) 95 Cal.App.5th 388, 404 ["Based on the plain language of the statutes, and consistent with the statutory schemes governing dependency and ICWA, we agree with Delila D....."]; In re V.C. (2023) 95 Cal.App.5th 251, 258-259 [The ICWA duty of inquiry applies regardless of how the children were taken into custody]; contra, In re Robert F. (2023) 90 Cal.App.5th 492, 504 , review granted July 26, 2023, S279743 [ICWA inquiry of extended family members is not required when the children are taken into protective custody pursuant to a warrant.]; In re Ja.O. (2023) 91 Cal.App.5th 672, 677-681, review granted July 26, 2023, S280572 [same]; In re Andres R. (2023) 94 Cal.App.5th 828, 842-856, review granted Nov. 15, 2023, S282054 [same].)
We disagree with the holdings in Robert F., Ja.O., and Andres R. We find the analysis in Delia D. more persuasive and apply its holding to this case. Thus, the department and the court were required to conduct an ICWA inquiry of any reasonably available extended relatives.
Here, the department and the court had contact with extended family members but never documented any inquiry of those relatives' Indian ancestry. Prior to detention, the department spoke with the maternal aunt, A.M., who had been taking care of the children. The social worker spoke to the paternal uncle who said mother had asked him to take care of the children. An unnamed maternal aunt was present in court on October 9, 2019. At a hearing on November 30, 2021, unnamed maternal and paternal aunts were present.
The court authorized an ICPC for maternal aunt, B.B., who lived in Utah and with whom the social worker had left a voicemail. The department placed X.V. with a maternal great aunt. At a hearing on July 29, 2020, M.T.'s father provided the names and phone numbers for his mother and sister, A.Z. and M.B. The department received a phone number for M.T.'s father from M.T.'s paternal grandmother. A maternal uncle was present in court on April 10, 2023.
Moreover, the department and the court had extensive contacts with the maternal grandmother and the paternal aunt. The department placed I.T. and M.T. with the paternal aunt. The paternal aunt appeared regularly in court, and even testified, twice. She filed a section 388 petition requesting the court terminate parents' reunification services, which she later withdrew. The paternal aunt filed a request for a restraining order against mother, which the court granted.
Likewise, the maternal grandmother appeared regularly in court. The court spoke directly with the maternal grandmother at the hearing on December 12, 2022. The court ordered the department to interview the maternal grandmother. X.V. had been placed with the maternal grandmother previously, but was removed when the maternal grandmother lost her foster license. Thus, insufficient evidence supports the court's findings that the department and court had conducted proper ICWA inquiries of reasonably available extended relatives.
"[I]n ICWA cases, a court must reverse where the record demonstrates that the agency has not only failed in its duty of initial inquiry, but where the record indicates that there was readily obtainable information that was likely to bear meaningfully upon whether the child is an Indian child." (In re Benjamin M. (2021) 70 Cal.App.5th 735, 744 [The department "failed its duty of inquiry by not asking 'extended family members' . . . whether there is reason to believe [the child was] an Indian child."]; compare In re Dezi C. (2022) 79 Cal.App.5th 769, 779, review granted Sept. 21, 2022, S275578 ["[A]n agency's failure to conduct a proper initial inquiry into a dependent child's American Indian heritage is harmless unless the record contains information suggesting a reason to believe that the child may be an 'Indian child' within the meaning of ICWA, such that the absence of further inquiry was prejudicial to the juvenile court's ICWA finding."]; contra, In re Ezequiel G. (2022) 81 Cal.App.5th 984, 1003, 1006 ["[A]n automatic reversal approach to claims of ICWA inquiry errors is not compelled by the statute, harms the interests of dependent children, and is not in the best interests of Indian communities." "Plainly, complying with the literal language of the statute-that is, making an initial and further ICWA inquiry of every member of a child's extended family . . . is absurd at best and impossible at worst."]; contra, In re M.B. (2022) 80 Cal.App.5th 617, 629-630 [per se reversal where department and juvenile court failed their duties of ICWA inquiry].)
Here, the department "in fact failed to obtain information that appears to have been both readily available and potentially meaningful." (In re Benjamin M., supra, 70 Cal.App.5th at p. 744.) Because it is possible that the reasonably available, above listed extended family members might have had information bearing on minors' potential Indian heritage, the matter must be reversed and remanded so that the department can fully comply with its duty of inquiry and notice. (Ibid.)
III. DISPOSITION
The judgment is conditionally reversed and "remanded to the juvenile court for full compliance with the inquiry and notice provisions of ICWA and related California law and for further proceedings not inconsistent with this opinion." (In re M.B., supra, 80 Cal.App.5th at p. 630.)
We concur: CODRINGTON J., RAPHAEL J.