Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County. Linda McFadden, Judge. Super. Ct. Nos. 508892, 508979, 508980
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.
Michael H. Krausnick, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Harris, Acting P.J., Cornell, J., and Kane, J.
INTRODUCTION
On February 6, 2007, after a contested Welfare and Institutions Code section 366.26 hearing, the juvenile court terminated the parental rights of appellant, Dawn R., to her children A.R., Cristina R., and F.R. On appeal, Dawn R. contends the juvenile court erred in failing to apply exceptions for termination of parental rights where the children would benefit from continuing the relationship (§ 366.26, subd. (c)(1)(A)) and termination of parental rights would substantially interfere with sibling relationships (§ 366.26, subd. (c)(1)(E)). Dawn R. further argues that having a caregiver who is not a member of her own tribe undermines the intent of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901, et seq.).
Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
The parental rights of their father were also terminated. Only Dawn R. appeals the juvenile court’s judgment.
FACTS AND PROCEEDINGS
On January 10, 2006, a petition was filed by the Stanislaus County Community Services Agency (agency) pursuant to section 300 alleging that Dawn R.’s child, Cristina, at birth tested positive for the presence of opiates in her blood. According to the petition, Dawn R. admitted to the social worker that she used heroin and methadone during her pregnancy. Dawn R. refused to enter into a treatment program after giving birth to Cristina. When F.R. was born, he also tested positive for opiates in his system. Dawn R. had an extensive history of arrests for drug use, transportation, and sales of narcotics between 1988 and 1995.
On January 11, 2006, the children were detained from Dawn R. Their father, F.R., Sr., was given physical custody of the children. An amended section 300 petition was filed adding allegations that the father tested positive for opiates, was a daily user of heroin, and had an extensive history of substance abuse and failed treatment programs. On February 9, 2006, the children were detained from their father. Dawn R. had reported that she was enrolled with the Chippewa Indian Tribe. Pursuant to the ICWA, the agency contacted the Bureau of Indian Affairs (BIA) which later reported Dawn R. may be affiliated with the Lac Courte Oreilles Band of Lake Superior Tribe of Chippewa Indians (tribe).
Indian expert witness Marilee Mai submitted a report dated March 3, 2006, setting forth her credentials and background. Mai had talked to Dawn R. and to caregiver C.S., a member of the Pomo Tribe. Mai stated that in her opinion, custody of the children by either parent would likely result in serious emotional or physical damage to the children.
On March 9, 2006, the juvenile court conducted a joint jurisdiction/disposition hearing. The court sustained the amended petition as to both parents and adjudged all three children dependents of the court. The court found the parents had made no progress to safely return the children to the home within the preceding six months. The court ordered reunification services to both parents for six months. The court approved the agency’s case plan, noted the report of expert witness Mai, and found that although active efforts had been made to prevent the breakup of the Indian family, those efforts were unsuccessful. The ICWA was found applicable to the action. The tribe filed a motion to intervene into the case.
An interim review report filed on May 18, 2006, noted that the father was not interested in doing his case plan and also did not wish to sign a waiver. The social worker attempted to contact the mother by correspondence each month, as well as by phone call attempts and messages. The social worker left cards. Dawn R., however, failed to show for an appointment set for May 11, 2006. The social worker was unable to verify that any reunification case plan requirements had been completed.
In a status review report filed July 21, 2006, the social worker stated that all three children were being enrolled in the tribe. During an interim progress review, tribal counsel participated by phone and indicated the tribe’s approval of the placement of the children with their caregiver because of the caregiver’s Indian ancestry.
Although they had been referred to parenting classes on January 10, 2006, the parents did not enroll in the program until June 12, 2006. The parents had completed three classes as of the time of the report. A counselor tried to explain the impact of substance abuse on parenting but reported that the parents did not grasp the need for treatment. Dawn R. was not ready as of June 13, 2006, to detoxify from her drug dependency and had not made contact concerning an inpatient program as of the writing of the report. The father reported that he did not intend to enter an inpatient treatment program. Visitation between the parents and the children went well. The parents interacted lovingly with the children and were supportive of the caregiver.
A letter to the agency by a service provider dated August 24, 2006, stated that Dawn R. had attended 8 of a possible 10 classroom meetings and 6 individual sessions. Although both parents had a positive attitude and admitted drug use, they “did not believe it [drug use] negatively impacted their ability to parent and provide for their children.” The social worker recommended that reunification services to the parents be terminated.
On September 1, 2006, the juvenile court found that return of the children to their parents would create a substantial risk of detriment, reasonable services had been provided to the parents, and the parents had made limited progress toward eliminating or mitigating the causes necessitating placement. The court found that although the parents had participated in the parenting component of their case plan, both parents were unable to understand, even after parenting classes, how their substance abuse affects their ability to properly parent their children. The court found all three children to be Indian children and that the ICWA applied. The court terminated reunification services and continued the children as dependents of the court.
The agency filed its initial report for the section 366.26 hearing on November 16, 2006. The children had resided with C.S., a family friend and member of the Pomo Tribe, since March 10, 2006. The social worker reported that A.R. had no reported behavior issues and appeared to be stable and happy. F.R. was too young to attend school. A.R., F.R., and Cristina were developing within a normal range. Cristina was described as a calm, very happy baby. C.S. stated her wish to adopt all three children and was very committed to the children.
The social worker described the relationship between C.S. and the three children as a very loving bond. C.S. supported continued monthly contact between the parents and the children if it remained in the children’s best interests. The social worker was of the opinion that termination of parental rights would not be detrimental to the children and that a permanent plan of adoption was appropriate.
Marilee Mai submitted a report in support of the termination of parental rights. Mai had formerly worked as a social worker for the agency and was formerly a supervisor of a child welfare court unit. Mai had extensive experience as an expert witness on Indian tribal affairs with regard to child welfare. Mai explained that although there are differences among tribes concerning particular customs, the core values and practices in child rearing are common to all Indian tribes.
Mai observed that the children had been residing with C.S. since March of 2006. The parents had failed to overcome the problems that led to removal of their children and continued to struggle with substance abuse. C.S. is of American Indian ancestry and is a relative to the husband of a maternal aunt. The children saw C.S. as an extended family member before their placement with her. Mai concluded that active efforts were made to provide remedial services and rehabilitation to prevent the breakup of an Indian family but these efforts were unsuccessful. Mai stated that in her opinion, beyond a reasonable doubt, the custody of all three children with either parent would likely result in serious emotional or physical damage to them. Mai did not oppose termination of parental rights.
The social worker stated in an addendum report that A.R. said she was happy. When told the agency was recommending adoption by C.S., A.R. replied that she wanted to be adopted by C.S.
The section 366.26 hearing was convened on February 6, 2007. Mai testified consistently with her written report. A.R. testified she wanted to visit her parents whom she still loved. When told she may not see them again if adopted, she indicated she wanted to see her parents but still wanted to be adopted.
Dawn R. testified she enjoyed frequent visits with her children before her incarceration but the visits were less frequent after her incarceration. Dawn R. felt she had a close bond with her children. Dawn R. stated that she never physically or verbally abused her children and they were never neglected in her care.
The juvenile court found the agency complied with the case plan, it was likely the children would be adopted, and termination of parental rights would not be detrimental to the children. The court found adoption was an appropriate plan for the children and that active efforts had been made to remediate and rehabilitate the parents but that these services were unsuccessful. The court found that efforts to prevent the breakup of an Indian family had been unsuccessful. The court found beyond a reasonable doubt that leaving the children in the physical custody of either parent would likely cause serious, emotional or physical damage to them. The court terminated the parental rights of both parents and initiated adoption procedures.
DISCUSSION
Dawn R. contends there was evidence of a beneficial relationship with her children (§ 366.26, subd. (c)(1)(A)) and that termination of her parental rights would substantially interfere with sibling relationships (§ 366.26, subd. (c)(1)(E)). Dawn R. also briefly argues an Indian family has been broken up by the termination of her parental rights.
A. Beneficial Relationship
To the extent we may draw inferences from the record, we may do so only as to those legitimate inferences which uphold the decision of the trial court. (In re Laura F. (1983) 33 Cal.3d 826, 833.) We view the evidence in the light most favorable to the trial court’s judgment and in assessing the evidence, appellate courts do not reweigh it. (In re Shelley J. (1998) 68 Cal.App.4th 322, 329.) Where there is a conflict in the evidence, we indulge all reasonable inferences in support of the trial court’s finding. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378; In re Joshua H. (1993) 13 Cal.App.4th 1718, 1728.)
The issue of adoptability posed in a section 366.26 hearing focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.) All that is required is clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406.)
For the section 366.26, subdivision (c)(1)(A) exception to apply, the relationship between parent and child must promote the well-being of the child to such a degree that it outweighs the well-being of the child in a permanent home with adoptive parents. The juvenile court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and sense of belonging to a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial and positive emotional attachment so 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. (1994) 27 Cal.App.4th 567, 575.)
The parties did not dispute that Dawn R. had a loving relationship with her children. She was unable to acknowledge the impact of her drug addiction on her ability to effectively parent her children. Although Dawn R. completed parenting classes, she never entered into a treatment program for her addiction. Two of Dawn R.’s children were born addicted to opiates that she took during her pregnancies. After losing custody of her children, Dawn R. never regained custody, even for a limited time. The oldest child, A.R., loved her mother but also wanted to be adopted by C.S. Dawn R. made little showing at the termination hearing that her parental relationship benefited her children or that termination of her parental rights deprived them of a substantial and positive emotional attachment which would cause them great harm.
Once reunification services are ordered terminated, the focus shifts to the needs of the children for permanency and stability. (In re Marilyn H. (1993) 5 Cal.4th 295, 309 Marilyn H.).) If, as in this case, the children are likely to be adopted, adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child. (In re Celine R. (2003) 31 Cal.4th 45, 53 (Celine R.).)
Although section 366.26, subdivision (c)(1) acknowledges termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348 (Jasmine D.).) It is the parent’s burden to show termination would be detrimental under one of the exceptions. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.) Dawn. R. has failed to do so.
B. Sibling Relationships
The agency argues that Dawn R. never raised the sibling relationship exception during the termination hearing. For this procedural reason, as well as the facts of the instant action, we reject this issue.
There was no evidence adduced at the termination hearing directly relevant to the sibling bond. Toward the end of oral argument, Dawn R.’s counsel briefly and without elaboration referred the children as “a sibling group and the sibling group has been in the care of the parents since they were born.” The juvenile court corrected counsel noting that Cristina had been with the caregiver immediately after her birth. The issue of a sibling exception was not otherwise developed during the termination hearing. Counsel’s mention of it was little more than an afterthought. There was no development of the factual basis for this contention through testimony or evidence. Waiver (or forfeiture) doctrine is therefore applicable to this argument on appeal.
Dawn R. had the burden to raise any relevant exception at the termination hearing. The juvenile court does not have a sua sponte duty to determine the application of any of the exceptions to the termination of parental rights. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) In general, the failure to raise the sibling relationship exception results in a waiver of any complaint about the court's failure to apply it. When a parent fails to raise one of the exceptions at the hearing, not only does this deprive the juvenile court of the ability to evaluate the critical facts and make the necessary findings, but it also deprives this court of a sufficient factual record from which to conclude whether the trial court's determination is supported by substantial evidence. (In re Erik P. (2002) 104 Cal.App.4th 395, 403.)
Even if trial counsel’s brief reference to the sibling bond overcomes waiver and forfeiture, this argument fails on its merits. The sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a “compelling reason” for concluding that the termination of parental rights would be “detrimental” to the child due to “substantial interference” with a sibling relationship. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813, quoting § 366.26, subds. (c)(1) & (c)(1)(E).)
Here, the evidence simply did not compel a finding that termination would substantially interfere with a sibling relationship. In fact, all three siblings had remained together during nearly the entirety of detention proceeding. C.S. planned to adopt all three children. There is no evidence that termination of parental rights would lead to a severance of sibling ties. More importantly, Dawn R. failed to present any evidence at the termination hearing that the need for sibling bonds would outweigh the benefits of adoption. Dawn R. failed to satisfy her heavy burden of proof for this exception to termination of parental rights to apply.
In addition, although section 366.26, subdivision (c)(1) acknowledges that termination may be detrimental under specifically designated circumstances, a finding of no detriment is not a prerequisite to the termination of parental rights. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1348.) Rather, it is the burden of a party opposed to termination to show that termination would be detrimental under one of the exceptions. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.) Moreover, when a juvenile court rejects a detriment claim and terminates parental rights, the appellate issue is not one of substantial evidence, as appellant argues. Instead, it is whether the juvenile court abused its discretion. (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351.) On review of the record, we find no abuse of discretion.
C. Indian Family Relationship
Dawn R. argues that the termination of her parental rights caused the breakup of an Indian family and having the children adopted by an Indian caregiver from another tribe fails to accomplish the goals of the ICWA. There is no merit to this contention. From the earliest stages of this proceeding, the agency worked to fulfill its obligations and responsibilities under the ICWA. The children were being enrolled into their mother’s tribe. Although the caregiver came from another tribe, she was a close friend of the Dawn R.’s family before the instant dependency proceedings were initiated.
A legal representative of the tribe made telephonic appearances and never objected to the proposed disposition. A special expert witness, Marilee Mai, prepared a report and testified that adoption by the caregiver was appropriate given the inability of the parents to overcome the substance abuse problem that led to dependency proceedings.
Mai noted that the children saw C.S. as an extended family member before their placement with her. Mai concluded that active efforts were made to provide remedial services and rehabilitation to prevent the breakup of an Indian family but these efforts were unsuccessful. Mai stated that in her opinion, beyond a reasonable doubt, the custody of all three children with either parent would likely result in serious emotional or physical damage to them. Mai believed termination of parental rights was necessary.
The agency and the juvenile court complied with the requirements of the ICWA and placed the children with an American Indian caregiver, who expressed an interest in adopting the children. There was no objection by the tribe. The expert witness appointed by the tribe to oversee compliance with the ICWA concurred with the agency’s proposed disposition. We find no merit to this contention.
DISPOSITION
The order terminating parental rights is affirmed.