Opinion
NOT TO BE PUBLISHED.
Super. Ct. No. J04045.
SCOTLAND, P.J.
C.C. (appellant), the mother of two-year-old J.T. (the minor), appeals from a juvenile court order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further section references are to the Welfare and Institutions Code unless otherwise specified.) She contends (1) the court erred by appointing a guardian ad litem for her, and (2) relevant Indian tribes were not adequately notified of the proceedings pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We shall affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Child Protective Services (CPS) placed a protective hospital hold on the minor when appellant and the minor tested positive for marijuana upon the minor’s birth in September 2005.
The San Joaquin County Human Services Agency (the Agency) filed a petition alleging the minor has suffered or was at substantial risk of suffering serious physical harm or illness (§ 300, subd. (b)) because, among other things, (1) appellant used opiates, marijuana, methamphetamines, and benzodiazepine while pregnant with the minor; (2) during the pregnancy, appellant had only one prenatal checkup, and it was “undocumented”; (3) following the birth, appellant tried three times to leave the hospital with the minor against medical advice; (4) appellant and the minor’s father lacked stable housing and were not prepared to care the minor; and (5) the parents’ drug use severely impaired their ability to care for the minor.
The father is not a party to this appeal.
The detention report noted that as children, appellant and her siblings had an “extensive history” with CPS. Appellant had been a dependent of the court. The minor was ordered detained.
Appellant and the minor’s father were not present at the jurisdictional hearing. The court found reasonable efforts and due diligence had been expended to locate them. It received in evidence the petition and detention report, and found the petition’s allegations were true.
The dispositional report stated appellant was 19 years old, used drugs since she was 15 years old, lived a transient lifestyle, and was unable to provide a safe, healthy, and secure environment for the minor until appellant addressed her substance abuse and domestic violence history. She had not made herself available to be interviewed by the social worker or to visit with the minor. However, she had recently agreed to enter a drug treatment program. The report proposed that appellant complete a domestic violence program, a parent education program, substance abuse testing, and counseling services.
Appellant first appeared in court at the dispositional hearing in December 2005. She stated she is Cherokee and Choctaw, but she could not identify any tribe to which she belonged. She was directed to complete form JV-130 and give it to the social worker. The juvenile court stated that notice would be provided to the tribes and to the Bureau of Indian Affairs (BIA). It appointed counsel for appellant and ordered her to be present at the continued dispositional hearing.
Appellant did not appear at the continued hearing. After explaining he had not been in contact with her, appellant’s counsel submitted the matter on the issue of disposition and was granted 30 days to “reopen” the issue. The social worker advised the court that appellant had attended two visits with the minor and had been referred to Recovery House for treatment, but the minor’s father was telling appellant not to go. The court adopted the recommended findings and orders and continued the matter for review and possible termination of reunification services.
In February 2006, the Agency sent notice of involuntary custody proceedings (Form JV-135) to three Cherokee tribes and three Choctaw tribes. The tribes signed receipts for the notices.
In March 2006, the Agency received a response from the United Keetoowah Band of Cherokee Indians in Oklahoma stating the minor was not eligible for enrollment.
The May 2006 status review report noted that appellant’s visitation with the minor had been cancelled after she missed three consecutive visits. A maternal cousin advised the social worker that appellant was pregnant again and that she had given up on reunifying with the minor. The cousin and her husband were visiting the minor weekly and were interested in adopting her. They were also attending parenting classes to better prepare themselves for parenthood. The agency recommended termination of reunification services due to the minor’s age (seven months) and her parents’ failure to visit her or make substantial progress on their case plans.
The review hearing was held in May 2006. Appellant’s counsel indicated there had been no contact with her. The court made the findings and orders recommended in the review report, terminated appellant’s reunification services, and ordered a writ package sent to appellant. The court set a section 366.26 hearing for September 2006 and a review of permanent plan hearing for November 2006.
The report for the section 366.26 hearing indicated that the maternal cousin and her husband were being considered as an adoptive placement for the minor. Appellant gave birth to her second child in August 2006. That child was being detained in protective custody because she had exhibited drug withdrawal symptoms at the hospital. Neither parent had visited the minor since January 2006, and the minor had no current relationship with either of them. The report recommended termination of appellant’s parental rights and a permanent plan of adoption.
The sibling’s dependency case is not a part of this appeal.
In September 2006, the section 366.26 hearing was continued to November 2006.
In October 2006, the Agency sent notice of involuntary custody proceedings (Form JV-135) to the three Cherokee tribes, the three Choctaw tribes, and the BIA.
The status review report for the November 2006 hearing stated that appellant was residing in a substance abuse treatment program and was attempting to reunify with her second child. The report said appellant had requested and was granted monthly visitation with the minor at the September 2006 hearing. The maternal cousin and her husband had been assessed for placement and certain concerns were identified. Appellant raised additional concerns regarding the cousin’s husband having anger issues. The Agency had yet to decide whether to place the minor in the cousin’s home.
In November 2006, the Agency sent notice of involuntary custody proceedings (Form JV-135) to the BIA. A return receipt from the BIA was filed. The hearing was continued to December 2006. The Agency sent notice of the December 2006 proceedings to the BIA.
At the continued section 366.26 hearing in December 2006, the following colloquy occurred:
“[COUNTY COUNSEL]: This is on for contested .26 hearing. There’s been a recent psychological evaluation of [appellant], which indicates she could use the assistance of a guardian ad litem. She’s had a guardian appointed regarding her other child, and that was Felicia Morrison. We’re asking Ms. Morrison be appointed guardian ad litem for [appellant] on this case and reset the trial date.
“THE COURT: Any disagreement with that?
“[COUNSEL FOR FATHER]: No objection.
“[COUNSEL FOR MINOR]: No.
“[¶] . . . [¶]
“[COUNTY COUNSEL]: Your Honor, could we have an inquiry of [appellant] to see if she objects to the appointment of guardian ad litem?
“THE COURT: Sure. Would you like to have a guardian ad litem to assist you?
“[APPELLANT]: Yes, I would.
“THE COURT: Okay.
“[COUNTY COUNSEL]: Thank you.
“THE COURT: Yes.
“[APPELLANT]: I also want a trial.
“THE COURT: Good. Okay. That’s coming. That’s what we set. We will give everything you want.”
The guardian ad litem was appointed and the section 366.26 hearing was continued to February 2007.
At the February 2007 hearing, appellant’s counsel asked for a continuance to file a section 388 petition based on appellant’s progress on her reunification case plan in the sibling’s dependency matter. The request was granted.
The section 388 petition, filed in late February 2007, alleged appellant had completed a substantial amount of her reunification case plan in the sibling’s dependency case. The petition asked the court to rescind the order terminating reunification services in this case and to join this case with the sibling’s case in order to extend the timeline of services to appellant. According to the petition, the change was in the minor’s best interest because of her bonds with appellant and the sibling. The court denied the petition, ruling it “does not show that it will be in the best interest of the child to change the order.”
In April 2007, the Agency received a response from the BIA indicating the tribes and the BIA had received notice as required, and any further responses would be determined by the tribes.
The May 2007 status review report stated that the concerns regarding the maternal relatives had been resolved and that the minor had been placed in their home in January 2007. The Agency recommended termination of parental rights.
At the May 2007 termination of parental rights hearing, the court received testimony from appellant, who conceded that she “didn’t try in the beginning” of the dependency. She said she visited the minor once a month since September 2006, but the minor “doesn’t even know who [appellant is] yet.” Appellant testified she was in reunification with the sibling, and the sibling would be placed with her in June 2007. She added that the sibling had been living with the minor (at the cousin’s residence) and that the two have formed “a sibling bond.” She explained that she had not visited her children prior to September 2006 because she did not want them to observe her while she was under the influence of illegal drugs.
At the conclusion of appellant’s testimony, the court asked why one child was being returned to her but the other was not. County Counsel responded that the statute allows only a limited time to reunify, that appellant had not reunified within the allotted time, and that no exception to the time limit applied.
Appellant’s counsel responded that appellant had maintained regular visitation and contact with the minor, who would benefit from continuing the relationship. (§ 366.26, subd. (c)(1)(B)(i).) County counsel reminded the court that the reunification issue had been recently decided by means of the section 388 petition.
Noting appellant’s concession that there was no bond between her and the minor, the court found appellant “dropped the ball and didn’t do anything” during the minor’s “first year of life,” which was “the crucial bonding time.” The court then terminated appellant’s parental rights.
DISCUSSION
I
Appellant contends that the juvenile court’s appointment of a guardian ad litem was without appellant’s knowing consent and violated her right to due process of law. We find no prejudicial error.
“Before appointing a guardian ad litem for a parent in a dependency proceeding, the juvenile court must hold an informal hearing at which the parent has an opportunity to be heard. [Citation.] The court or counsel should explain to the parent the purpose of the guardian ad litem and the grounds for believing that the parent is mentally incompetent. [Citation.] If the parent consents to the appointment, the parent’s due process rights are satisfied. [Citation.] A parent who does not consent must be given an opportunity to persuade the court that appointment of a guardian ad litem is not required, and the juvenile court should make an inquiry sufficient to satisfy itself that the parent is, or is not, competent. [Citation.] If the court appoints a guardian ad litem without the parent’s consent, the record must contain substantial evidence of the parent’s incompetence. [Citation.]” (In re James F. (2008) 42 Cal.4th 901, 910-911, italics added; see In re Daniel S. (2004) 115 Cal.App.4th 903, 912; In re Enrique G. (2006) 140 Cal.App.4th 676, 683.)
Here, appellant expressly consented to the appointment of a guardian ad litem. However, she claims her consent was not knowing and intelligent because “there was no evidence that her trial counsel, or anyone else, had explained to her the purpose or consequences of the appointment.” Indeed, the record shows the court did not explain the purpose of a guardian ad litem or the grounds for believing that appellant was incompetent (In re James F., supra, 42 Cal.4th at pp. 910-911); and the record does not show that appellant had retained sufficient knowledge of the purposes and consequences following the appointment of the guardian ad litem in the sibling’s case. Nevertheless, as we will explain, appointment of a guardian ad litem was not prejudicial.
Appellant argues that she was prejudiced because the guardian ad litem failed to appeal the denial of her section 388 petition. But her failure to identify any legal error that could have been raised in such an appeal is fatal to her claim.
Appellant also complains that the guardian ad litem did not file a subsequent section 388 petition immediately prior to the section 366.26 hearing in May 2007. But she identifies no facts that could have yielded a different result. The section 388 petition anticipated appellant’s reunification with the sibling, and that reunification remained on track at the time of the section 366.26 hearing. By May 2007, the minor had spent five months with the maternal cousin and no facts suggested that their bond was trivial or insignificant. In contrast, there was no evidence that the one-year-eight-month-old minor had formed any significant bond with her nine-month-old sibling. In any event, appellant has not cited, and we have not found, any case in which a bond between infants of such young ages was found to outweigh the minor’s interest in a permanent and stable adoptive home.
The purpose of reunification services is to ameliorate the conditions that led to removal so that the child may be returned home. (In re Joanna Y. (1992) 8 Cal.App.4th 433, 438.) The maximum period authorized by statute during which services may be offered is 18 months from the time the child was removed from the home. (§§ 361.5; 366.21, subd. (g).) In unusual circumstances, the juvenile court has discretion to extend services beyond this statutory limit. (In re Dino E. (1992) 6 Cal.App.4th 1768, 1778-1779 [no reunification plan]; In re Daniel G. (1994) 25 Cal.App.4th 1205, 1216 [no services for 12 months]; In re David D. (1994) 28 Cal.App.4th 941, 953 [reasonable services not provided]; In re Elizabeth R. (1995) 35 Cal.App.4th 1774, 1798-1799 [mother hospitalized with mental illness during dependency had nonetheless completed the plan and needed time to stabilize].) The rule developed in these cases “provides an emergency escape valve in those rare instances in which the juvenile court determines the best interests of the child would be served by” additional services. (In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1798-1799.)
Appellant has not identified facts warranting an “emergency escape” from the 18-month limit. (In re Elizabeth R., supra, 35 Cal.App.4th at pp. 1798-1799.) Her failure to take advantage of offered services for the first year of the minor’s life does not rise to the extraordinary level shown by the cases cited above. On this record, the guardian ad litem’s failure to renew the section 388 motion was harmless by any standard.
Appellant next complains that the guardian ad litem’s failure to present evidence of the sibling bond compromised her argument for application of the statutory exception to the termination of parental rights. (§ 366.26, subd. (c)(1)(B)(v).) We disagree.
“In enacting this exception, the legislature was concerned with preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil.” (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) By no stretch of the imagination can a relationship between siblings who are one year old and two years old be considered “long-standing.” (Ibid.) Nor does appellant claim there was available evidence that the one-year-old sibling served as anchor for the two-year-old minor. Thus, the guardian ad litem’s failure to assert the exception could not have been prejudicial.
Appellant claims the juvenile court should have reviewed the psychological evaluation or taken judicial notice of orders made in the sibling’s case before appointing the guardian ad litem. But appellant has not shown that her evaluation failed to support the appointment of a guardian ad litem. Therefore, even if the failure to obtain the evaluation and orders was error, it was not prejudicial. (In re James F., supra, 42 Cal.4th at pp. 911-919.)
II
Appellant contends the Agency and the juvenile court did not comply with the notice and procedural requirements of ICWA.
She first claims the notices to the tribes were defective because they “included only partial information concerning [her] ancestry,” “omitted all information concerning her father and his relatives,” and “contained no information concerning the maternal grandmother except her name, and none about the maternal [great] grandparents.” In her view, the omissions were erroneous because the “missing information was readily available to the county. [Appellant] had been a dependent and, as the county acknowledged in its initial report, she and her siblings had ‘an extensive history’ with the county as children.” This claim is not properly before us.
“It has long been the general rule and understanding that ‘an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.’ [Citation.]” (In re Zeth S. (2003) 31 Cal.4th 396, 405.) Appellant’s argument violates this rule because the allegedly “missing information” was not before the juvenile court for its consideration and is not a part of the appellate record. (Cf. In re D.T. (2003) 113 Cal.App.4th 1449, 1455 [error found where information omitted from notices was contained in social worker’s dispositional report].) We can only speculate as to what additional portions of appellant’s ancestry might have been gleaned from agency records in other dependency cases. Appellant has not shown error by an adequate record. (E.g., Null v. City of Los Angeles (1988) 206 Cal.App.3d 1528, 1532.)
Appellant also faults the Agency for failing to “at least ask [her] for whatever information she did have.” But when she first appeared in court, appellant was ordered to provide the information known to her by filling out Form JV-130. No error is shown.
Appellant contends the juvenile court erred by convening the continued dispositional hearing in January 2006, following her claim of Indian heritage the previous month and before any ICWA notices were sent. The hearing was premature under California Rules of Court, rule 5.482(a)(1), which provides that the hearing must not proceed until at least 10 days after the requisite notice is received.
However, the premature hearing was harmless because the only further response from a tribe indicated the minor was not a member or eligible for membership. In February 2006, the Agency sent notice of involuntary custody proceedings (Form JV-135) to three Cherokee tribes and three Choctaw tribes. The tribes signed receipts for the notices. Of the six noticed tribes, only one provided a definitive response. The United Keetoowah Band of Cherokee Indians in Oklahoma stated the minor was not eligible for enrollment. Because notice was provided and only one entity provided a determinative (negative) response within 60 days after receiving notice, the juvenile court was entitled to find that ICWA did not apply to the proceedings. (Cal. Rules of Court, rule 5.482(d)(1).) No later obtained information suggested that ICWA did or may apply. In its latest reports, the Agency asserted that ICWA did not apply. The court’s evident failure to make a formal finding on the issue could not have been prejudicial.
DISPOSITION
The order terminating parental rights is affirmed.
We concur: SIMS, J., ROBIE, J.