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In re Isaiah D.

California Court of Appeals, Sixth District
Jul 3, 2008
No. H032232 (Cal. Ct. App. Jul. 3, 2008)

Opinion


In re ISAIAH D. et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent, v. ROBERTA D., Defendant and Appellant. H032232 California Court of Appeal, Sixth District July 3, 2008

NOT TO BE PUBLISHED

Santa Clara County Super. Ct. Nos. JD16796 & JD16797

RUSHING, P.J.

Statement of the Case

Roberta D. appeals from an order terminating her parental rights over her children Isaiah D. and F.D. and selecting adoption as the permanent plan under Welfare and Institutions Code section 366.26. She claims it was error to terminate her rights because (1) the children’s loss of their relationships with her and their half-sister Stephanie would cause them great harm and (2) the preservation of those relationships outweighs the benefits of adoption. Mother also claims the juvenile court’s order must be reversed because the court failed to ensure adequate compliance with notice requirements of the Indian Child Welfare Act (ICWA).

All further unspecified statutory references are to the Welfare and Institutions Code.

We affirm the court’s order.

Facts and Procedural Background

On February 6, 2006, the Santa Clara County Department of Family and Children’s Services (the Department) filed separate petitions, later amended, on behalf of Isaiah D., aged 10, and F.D., aged seven, (the minors) under section 300 to have them declared wards of the court. The Department alleged that Roberta D. (mother) had failed to protect the minors and was unable to do so. (§ 300, subd. (b).) More specifically, the petitions alleged that the minors were taken into protective custody because mother was arrested for a parole violation. Mother had prior felony and misdemeanor convictions and a history of drug abuse that continued to the present. Mother had used inappropriate physical force to discipline the minors. They had been exposed to mother’s drug paraphernalia, drugs, and drug use and had witnessed acts of domestic violence against mother by their father and mother’s boyfriends. And F. had emotional problems, for which she took medication and was considered a suicide risk.

The minors’ father died in a car accident in September 2005.

The juvenile court found the allegations true, assumed jurisdiction, and placed the minors with their maternal aunt and uncle, Elizabeth and Gabriel A., in San Jose. It ordered reunification services and adopted a case plan, which required, among other things, that mother submit to regular random drug tests and complete parent orientation classes, parenting without violence classes, a substance abuse program, drug assessment services, and an aftercare drug treatment program.

At an interim review hearing in June 2006, Barbara Stuber, the social worker, reported that the minors frequently fought and argued, they were not doing well in school, and their bad behavior had required professional intervention. Stuber further reported that mother had written to the minors from prison and would soon be paroled to her mother’s house in San Jose. In prison, mother attended anger management classes, parenting classes, and Narcotics Anonymous (NA) meetings. However, she was set to be released before completing those programs.

At the six-month review hearing in August 2006, Stuber reported that the minors’ behavior had not improved. Mother had not made progress on her case, did not show up for drug testing, and failed to provide documentary proof of attendance at NA meetings. Mother had admitted to her probation officer that she had used drugs again. At the time of the hearing, mother was in a residential drug treatment program, where she was taking parenting classes, receiving counseling, drug testing, and attending a 12-step program.

Mother was scheduled for supervised visitation with the minors once a week for two hours. Mother ended the first visit early because she had an appointment. At the second visit, mother brought lunch for the minors, and the visit went well, although mother repeatedly asked the minors if they wanted to end the visit early and had to be encouraged to continue the visit. Mother cancelled the third visit for some unspecified reason related to her living arrangements. And at the next visit, which had been rescheduled to late afternoon, mother had to leave early for an NA meeting, and the visit terminated before she left because she had not brought food for dinner, and the minors were hungry.

Reunification services were extended for another six months. At the 12-month review hearing in February 2007, Stuber reported that mother had been reincarcerated for a parole violation in late October 2006, and visitation had ceased. Mother was scheduled for release in March 2007.

Stuber submitted two visitation reports from Kindred Souls. At one visit, mother and the minors played and sang together, and the minors read to mother. Mother emphasized the importance of doing their homework and asked if they were brushing their teeth. Mother said she loved and missed them, and they said they loved her. They all hugged and kissed each other. At the next visit, mother brought food, and the minors were happy to see her and enjoyed the food. They talked about animals and getting braces. At one point, F. whined, but mother told her to stop, and she did and then continued playing happily. They all kissed and hugged when the visit was over, mother said she loved them, and F. did not want her to go.

Stuber reported that the minors were doing better in school, although they were a grade behind because of excessive absenteeism when they were younger. They taunted each other but got along with other children. In November 2006, the minors’ aunt become ill, and the minors were placed with their maternal, adult cousins Steve and Cindy C., who lived in New Mexico with their own four children. The minors had lived with them before from 2003 to 2005, after mother had voluntarily given up custody.

Stuber further reported that mother had failed to complete her parent orientation or parenting without violence classes and had not participated in counseling or a domestic violence support group. Mother also had not provided proof she had attended NA meetings. During the four months after her first release, mother had shown up only once for drug testing. And although she had voluntarily entered a residential drug program, she was discharged for inappropriate behavior.

Mother was unable to visit the minors after they moved to New Mexico. She was told that she could write if she first submitted her letters to the social worker, but she wrote to them directly. However, her letters were intercepted and not given to the minors.

Stuber recommended that reunification services be terminated because mother had failed to take advantage of services and make significant progress on her case plan. The court agreed, terminated services, and set the matter for a section 366.26 hearing in May 2007.

In a report dated May 2007, Stuber said that the move to New Mexico had been difficult for F., but she was now adjusting; and, except for a little squabbling, both minors were doing well at home and at school, and they had a good counselor. Mother was calling the minors, and the minors enjoyed talking to her.

Stuber reported that the minors’ cousins wanted to adopt them. Although Isaiah initially opposed the idea, he later changed his mind, and, as of April 2007, he wanted to be adopted because he felt that mother was unlikely to seek and regain custody. Stuber reported that mother opposed adoption and thought it would harm the children.

In a report dated July 2007, Stuben said that although F. had initially opposed adoption, she and Isaiah both wanted their cousins to adopt them. Isaiah was working with his counselor on adjustment issues. Stuben recommended adoption, noting that the minors had known their cousins for most of their lives, they had previously lived with them for two years, and they felt like members of their cousins’ family.

In an addendum dated October 2007, Stuben reported that the minors were doing very well academically, socially, and behaviorally; and they felt comfortable and secure with their cousins, whom they now called mom and dad.

Stuben stated that the minors had discussed adoption with their local social worker and still wanted to be adopted. Isaiah was enthusiastic; F. less so because she thought mother should have more time to turn her life around. Stuben spoke to the minors, and both reiterated their willingness to be adopted. Isaiah said he would like to be able to see mother, but he wanted to be adopted even though it meant that visitation would be a matter for his cousins to decide and her calls would be monitored. Stuben also spoke to Isaiah’s counselor, who had discussed adoption with Isaiah in depth. Isaiah said he wanted to have some contact with mother after the adoption. The counselor explained that his adoptive parents were open to visitation, but there was no guarantee. Isaiah understood and said he could accept that because he knew he would be better off being adopted by his cousins. The counselor opined that Isaiah understood adoption as much as a boy his age could.

Stuben spoke to F.’s counselor, who said they had discussed adoption, and F. appeared to understand that she could not live with her mother and felt that it was better to live with her cousins until she became an adult.

The cousins told Stuben that they knew the minors had a loving bond with their mother and maternal grandmother. The cousins said that they were committed to maintaining those relationships by allowing visits and calls, when that is possible.

At the termination hearing on October 29, 2007, Stuber testified as an expert on permanency planning. Because the minors needed permanence and stability and had begun to thrive with their cousins in New Mexico, Stuber opined that termination would not harm the minors and that the benefits of adoption outweighed the benefits of maintaining the minors’ relationships with mother and their half-sister Stephanie.

Stuber further testified that although the minors may have had some hope of reunifying with mother, they nevertheless realized that that was not going to happen, and they could not return to her. At this time, both minors understood adoption and wanted their cousins to adopt them. Stuber noted that the cousins had acknowledged the loving relationship between the minors and mother and considered it important to maintain.

Mother opposed adoption. She testified that she had a strong bond and affectionate relationship with the minors, and they would benefit by having a continuing relationship with her. She said she had spoken to them twice a week for two hours since they moved, and they were very excited to talk to her. She opined that the minors were afraid to say that they did not want to be adopted, did not express their true feelings to the social worker, and wanted to avoid hurting their cousins’ feelings. Despite her past conduct, mother asserted that she could and would take care of them properly. She said that after her release on parole, she planned on moving to New Mexico, and she feared that if the minors were adopted, the cousins would bar her from seeing them.

Mother also testified that the minors lived with Stephanie and Matthew for six months, and they got along well. Moreover, when the minors lived with their aunt and uncle, Stephanie visited them.

Stephanie testified that she and the minors were close, she missed them a lot, and tried to talk to them once or twice a week. During the summer of 2001 they lived together, played, and enjoyed each other. She could not remember the last time she saw them.

The minors’ maternal grandmother, Cristella G., testified that mother had a strong and good relationship with the minors and taught them right from wrong. She opined that the minors did not understand adoption and really wanted to be with mother. She also said that Stephanie and the minors were close.

After argument by the parties, the court terminated mother’s parental rights and selected adoption as the permanency plan for the minors, finding, among other things, that it would be detrimental to the minors to return them to mother, and that it was likely they would be adopted. The court rejected mother’s claims that maintaining the minors’ relationships with her and Stephanie outweighed the benefits of adoption.

Termination of Rights and Permanency Plan

“After reunification efforts have terminated, the focus shifts from family reunification toward promoting the best interests of the child. A child has a fundamental interest in belonging to a family unit, which includes a ‘placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]’ [Citation.] At the selection and implementation stage, the court has three alternatives: adoption, guardianship or long-term foster care.” (In re Zachary G. (1999) 77 Cal.App.4th 799, 808-809, quoting In re Marilyn H. (1993) 5 Cal.4th 295, 306 .)

“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 minor 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 minor under one of five specified exceptions. [Citations.]” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947; In re Jamie R. (2001) 90 Cal.App.4th 766, 773; § 366.26, subd. (c)(1) [exceptions].) “The parent has the burden to show termination would be detrimental to the minor under one of those exceptions.” (In re Valerie A. (2007) 152 Cal.App.4th 987, 997; In re Andrea R. (1999) 75 Cal.App.4th 1093, 1108.)

Mother does not challenge the court’s findings that the minors could not be returned to her and were likely to be adopted. Rather, she contends that she established two of the exceptions to termination, and there was no evidence to support a contrary finding. Specifically, she showed that maintaining her relationship (§ 366.36, subd. (c)(1)(B)(i)) and preserving the relationship with Stephanie (§ 366.26, subd. (c)(1)(B)(v)) outweighed the benefits of adoption.

Section 366.26, subdivision (c)(1) provides, in relevant part, “If the court determines . . . that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. [¶] . . . [¶] (v) There would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.”

We review the juvenile court’s decision for abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318; In re Aaliyah R. (2006) 136 Cal.App.4th 437, 447; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) “[W]hen a court has made a custody determination in a dependency proceeding, ‘ “a reviewing court will not disturb that decision unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination [citation].” ’ [Citations.] . . . ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ ” (In re Stephanie M., supra, 7 Cal.4th at pp. 318-319.)

Moreover, in reviewing the court’s decision, we defer to its factual findings, express or implied, if they are supported by evidence that is reasonable in nature, credible, and of solid value. In this regard, we do not evaluate the credibility of witnesses, reweigh the evidence, or resolve evidentiary conflicts. Rather, we draw all reasonable inferences in support of the findings, considering the record most favorably to the juvenile court’s order. (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1333; In re L.Y.L., supra, 101 Cal.App.4th at p. 947; In re Autumn H., supra, 27 Cal.App.4th at p. 576.)

Beneficial Parental Relationship

In re Autumn H., supra, 27 Cal.App.4th 567, the court explained that the exception for a beneficial parental relationship requires a showing that “the relationship 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 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. ¶Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult’s attention to the child’s needs for physical care, nourishment, comfort, affection and stimulation. [Citation.] The relationship arises from day-to-day interaction, companionship and shared experiences. [Citation.] The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent.” (Id. at p. 575; accord, In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418.)

In In re Jasmine D., supra, 78 Cal.App.4th 1339, the court declined to apply the exception despite evidence that mother had consistently visited her three-year-old daughter, had been nurturing, and had satisfied the minor’s needs for food, guidance, and discipline. The court pointed out that the minor had been in the court’s custody for almost two years, and mother had not completed her case plan, participated in drug treatment, or followed up on referrals for housing. She was also homeless, unemployed, and at times appeared to still be using drugs. (Id. at pp. 1343-1344.) On appeal, the court found no abuse of discretion. “The benefit of a stable, permanent adoptive home for [the minor] clearly outweighed the benefit of a continued relationship with [the mother], who despite her successful visitation record had made no steps toward overcoming the problems leading to [the minor’s] dependency on the juvenile court. The social worker reported: ‘[The minor] has lived with the prospective adoptive parents for four months and has adjusted well to the family. She calls the prospective adoptive parents “mommy” and “daddy.” She is particularly close to the 10 year old son. When asked about [the minor’s] transition into the family, the prospective adoptive mother stated, “it’s like she’s always been here.” ’ This is not the extraordinary case where an adoption should have been foreclosed by the exception provided in section 366.26, subdivision (c)(1)(A) [now subdivision (c)(1)(B)(i)].” (Id. at pp. 1351-1352.)

Here, it is undisputed that mother and the minors care for each other and share a loving relationship and bond. However, the exception requires more than evidence of loving relationship, limited contact, pleasant visits, and regular phone calls. (In re Derek W. (1999) 73 Cal.App.4th 823, 827.) As noted, mother had to show that as a result of her attention to their needs for physical care, nourishment, comfort, affection and stimulation, the minors had developed a significant, positive, emotional attachment to her. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Relevant considerations are the minors’ ages, the portions of their lives spent in mother’s custody, the positive or negative effect of interaction between them, and the minors’ particular needs. (In re Angel B. (2002) 97 Cal.App.4th 454, 466.)

Mother highlights evidence that she was the minors’ primary caregiver before she lost custody. Thereafter, she visited and called them as much as she could. The minors were always happy to see and talk to her and had a loving and happy relationship with her. She points out that she acted appropriately during visitation, bringing food, showing concern for their school work and reading, and reminding them to brush their teeth and say their prayers. She also asserts that the minors consistently wanted to maintain their relationship with her and did not really understand what adoption would mean.

However, viewed in the light most favorable to the court’s ruling, the record shows that mother had never consistently and appropriately performed her role as parent. While mother was the primary care giver, the minors were held back in school for excessive absenteeism. During this time, mother abused drugs and exposed the minors to them. She also exposed them to incidents of domestic violence and subjected them to inappropriate physical discipline. Mother spent significant amounts of time in prison and jail and had sent the minors to live with the cousins for two years. Moreover, she no longer had custody of her three other children.

After the minors were removed from mother, their behavior rapidly deteriorated, they did poorly in school, and F. suffered from emotional problems. During this time, mother violated parole, admitted using drugs, and was re-incarcerated. She did not complete her case plan, drug treatment or counseling, and most of her compliance with the plan occurred while she was incarcerated or in a residential drug treatment.

Although the minors enjoyed mother’s visits, visitation was very limited due to mother’s incarceration and the minors’ move. Visitation was always supervised, and mother’s calls and letters had to be monitored to ensure appropriate content. The sparse record of visitation reveals that mother brought food to some visits, played games and sang with them, listened to them read, and, at two visits showed a nurturing interest and concern for their school work and dental care and encouraged them to say their prayers. However, the record also shows that at times, mother tried to cut visits short and had to be encouraged to continue them. Mother also cancelled visitation and rescheduled one visit for late afternoon, but it had to be ended early because she did not bring food, and the minors were hungry for dinner.

Finally, the record reveals that the minors were thriving in New Mexico, where they felt like members of the family. They had known their cousins for most of their lives, previously lived with them for two years, and now called them mom and dad. The minors were also making substantial academic, behavioral, and emotional progress. They clearly loved and wanted to maintain a relationship with mother, but by the time of the termination hearing, they understood adoption and expressed to numerous people their desire to be adopted by their cousins.

Insofar as there was a conflict in the evidence concerning whether the minors adequately understood what adoption would mean, the trial court resolved it, implicitly finding that they did, especially Isaiah, who could have blocked termination had he objected to it. (§ 366.26, subd. (c)(1)(B)(ii).)

We conclude that in exercising its discretion, the juvenile court reasonably could have found that despite the loving relationship and bond between mother and the minors, the evidence did not demonstrate that the degree of mother’s parental concern for the minors’ needs was so great and had resulted in a such significant, positive, emotional parental attachment that the minors would suffer great harm from the termination of mother’s rights. Indeed, the minors had already suffered under mother’s care and inattention, and they were thriving without it. Further, the court reasonably could have found that the benefits from mother’s parental concern and attachment were very limited and not so significant that they outweighed the continued benefits the minors would gain by having a permanent home with new, adoptive parents, benefits amply demonstrated by the minors’ strong connection to their cousins and second cousins and the substantial personal, emotional, and academic progress they had achieved under their cousins’ care.

In sum, therefore, we reject mother’s claim that the court abused its discretion in terminating her rights and selecting adoption as the permanent plan. Simply put, the court’s decision and rejection of her claim of exceptions were not irrational, arbitrary, or capricious and did not fall outside the bounds of reason.

In her opening brief, mother cites then pending legislation (Assembly Bill No. 298, which has since been chaptered and is now section 366.26, subdivision (c)(1)(A)), which she asserts greatly expands a relative caretaker’s opportunity to act as a guardian of a dependent child and gives the juvenile court much more flexibility in selecting legal guardianship instead of adoption.

Sibling Relationship

“To show a substantial interference with a sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. Many siblings have a relationship with each other, but would not suffer detriment if that relationship ended. If the relationship is not sufficiently significant to cause detriment on termination, there is no substantial interference with that relationship.” (In re L.Y.L., supra, 101 Cal.App.4th at p. 952, fn. omitted.)

In determining the significance of a sibling relationship, the court considers “the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).) As with the exception for a beneficial parental relationship, the court under this exception 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. (In re L.Y.L., supra, 101 Cal.App.4th at p. 951.)

In In re Erik P. (2002) 104 Cal.App.4th 395, this court observed that the sibling exception recognizes that “ ‘ “when children have been separated from their parents due to abuse and neglect, sibling relationships become even more important to them. Academics and children’s advocates agree that maintaining sibling relationships can be critically important to the emotional well-being of these children whose lives and trust have been shattered . . . .” ’ [Citation.] ‘ “Maintaining sibling relationships is particularly important to children who have already lost their homes, their parents, changed schools and lost contact with their friends. Siblings are the only family, the last link to normalcy, that these children have left . . . .” ’ ” (Id. at p. 404.)

Here, Stephanie was 17 years old at the time of termination. She had lived with the minors for some months in 2001 and thereafter had visited them. When they were together, they all played together. According to mother, Stephanie, and the minors’ maternal grandmother, Stephanie and the minors had a great and close relationship.

There was no evidence of any meaningful sibling relationship between the minors and their half-brothers Joseph and Matthew.

This evidence does not compel a finding that the minors had such a significant and meaningful relationship with Stephanie that its loss would cause the minors to suffer great harm. Nor does the record reasonably suggest that the court abused its discretion in declining to make such a finding. Rather, given the age difference between Stephanie and the minors, their lack of a consistent and sustained shared experience, and the brief amount of time they lived together, the juvenile court reasonably could have found that the sibling relationship was not so significant and beneficial that it outweighed the obvious benefits of the minors’ adoption and permanency with their cousins. Indeed, there is no evidence that after moving to New Mexico, the minors expressed sadness or loss about not seeing Stephanie, mentioned her to their social workers, counselors, or cousins, or sought to communicate with her. On the other hand, the custodial cousins recognized the importance of maintaining existing family relationships and expressed their willingness to maintain the minors’ relationship with family members.

Mother’s reliance on In re Naomi P. (2005) 132 Cal.App.4th 808 (Naomi P.) is misplaced. There, the juvenile court found compelling reasons to apply the sibling exception, noting the impressive testimony and sincere demeanor of the children involved, its doubt that the prospective adoptive mother understood the importance of the siblings relationships, and substantial deficiencies in the social worker’s reports concerning the people who were important to the minor. (Id. at pp. 823-824.) On appeal, the court declined to interfere, finding that the juvenile court’s first-hand experience of the children as witnesses amply supported its decision. (Id. at p. 824.)

We note that the application of exceptions to termination of parental rights must be examined on a case-by-case basis. (In re Autumn H., supra, 27 Cal.App.4th at pp. 575-576.) Although Naomi P. has some factual similarity to this case, we do not read it as the controlling baseline for when the exception must be applied because (1) each case involves a unique set of facts, personalities, and relationships; (2) our factual review is deferential, and (3) we may reverse only if the juvenile court’s decision exceeds the bounds of reason.

Here, the court had all of Stuben’s reports and had observed Stuben, mother, Stephanie, and the minors’ maternal grandmother testify about the nature and extent of the sibling relationship. It did not find that the value of the sibling relationship outweighed the benefits of adoption. As noted, given the evidence before the court, we do not find that its decision exceeded the bounds of reason.

ICWA Compliance

Mother contends that notice of the proceedings sent to the tribes was inadequate because the Department failed to include relevant information that was readily available. Accordingly, mother claims that the court erred in finding the ICWA inapplicable.

“The ICWA confers on tribes the right to intervene at any point in state court dependency proceedings. [Citations.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253; In re Karla C. (2003) 113 Cal.App.4th 166, 174; In re Junious M. (1983) 144 Cal.App.3d 786, 790-791; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W., supra, 233 Cal.App.3d at p. 1421; accord, In re Alice M. (2008) 161 Cal.App.4th 1189, 1195.) “Notice under the ICWA must, of course, contain enough information to constitute meaningful notice.” (In re Karla C., supra, 113 Cal.App.4th 166, 175.) When proper notice is not given under the ICWA, the court’s order is voidable. (25 U.S.C. § 1914; Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 260.)

Under federal regulations, ICWA notice must include, if known, information concerning (1) the name, birthplace, and birth date of the Indian child; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the child’s parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (25 C.F.R. § 23.11(d)(1)-(4).) “[T]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors . . . .” (25 C.F.R. § 23.11(b).)

At the detention hearing in February 2006, mother gave her maiden name as Roberta A. and said that she might be a member of or eligible for membership in an Apache tribe because there was Apache heritage on her mother’s—Cristella G.’s—side of the family. Mother was not enrolled in any Indian tribe and did not know whether Cristella G. was enrolled. The court directed the social worker to interview Cristella G.

In this section, for convenience, we refer to the minors’ maternal grandmother as Cristella G.

Cristella G. told Stuben that her father and grandfather (the minors’ maternal great-grandfather and great-great-grandfather) had Indian heritage. However, she had no specific information and referred Stuben to her sister, Anita C. Anita C. had no additional information and said that, according to an older sister, the family had no Indian heritage.

The Department sent notice of the proceedings to eight Apache tribes, the Bureau of Indian Affairs (BIA), and mother. The notice (Form JV-135) listed mother’s name as Roberta A. and gave her current address, date of birth, and possible tribal affiliation. The notice listed father as Fabian D., provided his date of birth, and stated that he was deceased. The notice listed Natividad G. as the minors’ maternal grandfather and stated that he was born in Pacheco, New Mexico on February 8, 1915; had been affiliated with the Apache tribe; and died on January 10, 1997 or 1998. The notice listed Celina G. as the minors’ maternal grandmother and stated that she was born on July 2, 1916, and was deceased. The notice listed Albino G. as the minors’ maternal great-grandfather, and stated that he was born in New Mexico, had been affiliated with the Apache tribe, and was deceased.

Although listed as the minors’ maternal grandparents, Natividad G. and Celina G. did not have the same last name. However, Natividad G. and Albino G., listed respectively as the minors’ maternal grandfather and maternal great grandfather had the same last name.

Mother claims the notices were deficient because they listed her as “Roberta D.” but her legal name is “Roberta A. D.” and failed to include her birthplace, former addresses, and other unspecified “identifying information.”

The record citation provided by mother shows that she was listed as “Roberta A.,” which is the name she printed and signed on the form entitled Parental Notification of Indian Status. Moreover, although she and the notice omitted her married last name “D.,” mother fails to explain how the omission could have rendered the notice materially inadequate. “D.” was her deceased husband’s last name, and there is no evidence that he had any Indian heritage.

Not all deficiencies or omission in a notice are prejudicial error. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411; In re Junious M., supra, 144 Cal.App.3d at p. 794, fn. 8; e.g., Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 [including erroneous birth year for mother harmless]) As the court observed in the case of In re Jonathan D. (2001) 92 Cal.App.4th 105 at page 110, “Appellate courts in California have recognized that technical compliance with the Act’s notice requirements may not be required where there has been substantial compliance . . . .”

Here, we find the omission of mother’s married last name to be harmless.

Similarly, mother fails to suggest how information about her birth place and former addresses and Cristella G.’s name, date of birth, birthplace, and former addresses could have been prejudicial. Neither mother nor Cristella G. claimed to be members of a tribe or indicated that they had lived on a reservation, and neither knew for certain whether any members of the family were enrolled members of a tribe. Moreover, the most important information to be provided in a notice is the known information about the family member with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) The minors’ only potential ancestral sources of Indian heritage were Cristella G.’s father and grandfather, and the notices provided all the known the information about them. Additional information about Cristella G. and mother would not have added anything, made it any more or less likely that the minors had Indian heritage, or materially affected an investigation by the tribes into the minors’ possible Indian heritage.

We observe, however, the notices appear to misstate the relationship of certain family members to the minors. Cristella G. is the minors’ maternal grandmother, but the notice listed the deceased Celina G. as their maternal grandmother. Moreover, the notice listed Natividad G. and Albino G. respectively as the minors’ maternal grandfather and great-grandfather. However, Cristella G. identified the minors’ possibly Apache male ancestors as her father and grandfather. Thus, we may reasonably assume that Natividad G. and Albino G. respectively should have been listed as the minors’ great-grandfather and great-great grandfather. It is also reasonable to assume that Celina G. was the minors’ maternal great-grandmother because she was only a year younger than the minors’ maternal great grandfather Natividad G.

Nevertheless, these errors in degree could not have materially affected an investigation by the tribes, certainly not in a way that might have rendered the investigation less thorough or diminished the possibility that the tribes might have intervened. On the contrary, the misidentification of Natividad G. and Albino G. made them seem more closely related to the minors than they actually were, thus increasing the percentage of possible Indian heritage the minor might have had because of them.

We do not intend to suggest that agencies have some discretion concerning whether to include information on the official notice forms that is required by federal regulations and the forms. In our view, an agency’s role is to collect and pass on all required information. Moreover, we agree with those courts that have emphasized the importance of strict compliance with ICWA notice requirements to ensure that proper notice is given and that have remanded cases where notice was materially deficient. (In re Karla C., supra, 113 Cal.App.4th at pp. 178-179 ; In re Nikki R. (2003) 106 Cal.App.4th 844, 855-856; In re H.A. (2002) 103 Cal.App.4th 1206, 1214.) Juvenile courts and agencies that do not comply “face the strong likelihood of reversal on appeal to this court.” (In re H.A., supra, 103 Cal.App.4th at p. 1214.)

However, under the particular facts of this case, the technical deficiencies and omission of peripheral, albeit required, information does not warrant reversal so that new notices with the omitted and correct information can be sent. As noted, the notices provided all known information about Natividad G. and Albino G.—the minors’ only ancestors with purported Indian heritage. That information did not establish a sufficient connection between the minors and the tribes to warrant intervention, or even trigger further inquiry. Accordingly, we cannot conceive how additional background information about mother and Cristella G. could have made any difference.

In short, therefore, we conclude that the notice contained enough information to constitute meaningful notice and gave the tribes an opportunity to adequately investigate the minors’ possible Indian heritage and make an informed decision concerning whether to intervene.

Disposition

The order terminating mother’s parental rights and selecting adoption as the permanency plan is affirmed.

WE CONCUR: McADAMS, J., DUFFY, J.

Mother had three other children with a different man. At the time of these proceedings, those children were teenagers. Two of them, Matthew and Stephanie, were living with their maternal grandmother, who was pursuing guardianship of Stephanie. Matthew was involved in the juvenile probation system. The third child, Joseph, lived with his father in Texas.

Although the new legislation may provide additional safeguards to a relative caretaker and allow such a person to choose between legal guardianship and adoption, it is not particularly relevant here because the minors’ cousins have unequivocally expressed their interest in adopting the minors. Moreover, the new legislation does not change the legislative priority for adoption. Finally, the new legislation does not reasonably suggest that the court abused its discretion or that, as a matter of law, the facts established an exception to termination.


Summaries of

In re Isaiah D.

California Court of Appeals, Sixth District
Jul 3, 2008
No. H032232 (Cal. Ct. App. Jul. 3, 2008)
Case details for

In re Isaiah D.

Case Details

Full title:In re ISAIAH D. et al., Persons Coming Under the Juvenile Court Law. SANTA…

Court:California Court of Appeals, Sixth District

Date published: Jul 3, 2008

Citations

No. H032232 (Cal. Ct. App. Jul. 3, 2008)