Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ 111316 Charles J. Koosed, Judge.
Linda S. Rehm, under appointment by the Court of Appeal, for Defendant and Appellant (mother).
William D. Caldwell, under appointment by the Court of Appeal, for Defendant and Appellant (father).
Joe S. Rank, County Counsel, and Prabhath D. Shettigar, Deputy County Counsel, for Plaintiff and Respondent.
Brent D. Riggs, under appointment by the Court of Appeal, for minor.
OPINION
RAMIREZ P.J.
Defendants and appellants C.R. (mother) and M.L. (father) (collectively, parents) appeal from the juvenile court’s September 15, 2008, order terminating their parental rights to their daughter, L.L. (child) and selecting adoption with her current caretakers as her permanent plan. Specifically, the parents each argue: 1) the Department of Public Social Services (Department) did not provide proper notice under the Indian Child Welfare Act (ICWA) and the juvenile court made improper ICWA findings; and 2) the court erred in declining to apply the beneficial parental relationship exception to the preference for adoption. Mother further argues that the court erred in declining to apply the beneficial sibling relationship exception to the preference for adoption. As discussed below, we conditionally reverse the juvenile court’s orders to allow the Department to comply with ICWA, but in all other respects affirm the orders.
Statement of Facts and Procedure
The days-old child was detained on January 5, 2006. The child had been in the NICU unit because mother had failed to obtain pre-natal care and had been non-compliant with medical advice during labor, in that she insisted on pushing before being dilated. This resulted in the child having open lacerations and blisters on her head. Hospital personnel also reported concern that mother and father were acting inappropriately during labor and delivery. The parents were residing in a motel room and did not have proper provisions for the child. Mother also had a 17-year-old daughter, P.R., and a 15-year-old daughter, M.R., who are the child’s half-sisters. M.R. had a child of her own, who was born eight months before this child.
The half-siblings P.R. and M.R. are not the subjects of this appeal, and are mentioned only in relation to the child.
At the detention hearing held on January 10, 2006, the juvenile court ordered the child detained, with reunification services for the parents. The child had been placed with foster parents, who became her current prospective adoptive parents, on the day she was taken into custody. The child was not in the same placement as her half-sisters.
At the contested jurisdictional hearing held on April 11, 2006, the juvenile court found all allegations true, granted reunification services to the parents, and ordered the Department to provide notice under ICWA to the American Indian tribes identified by the parents.
The six-month review hearing took place on November 14, 2006. The court continued reunification services, despite the parents’ poor progress in their drug treatment programs and regular failure to submit to required drug tests.
The twelve-month review hearing was held on May 30, 2007. The court continued reunification services to both parents. Mother had completed her drug treatment program and father was said to be “relatively compliant” with his, but neither was compliant with drug testing.
At the 18-month review hearing on September 5, 2007, the court terminated reunification services and set a section 366.26 hearing for the child. The hearing was continued at the Department’s request so it could obtain a preliminary adoption assessment. Mother was arrested on April 18, 2008. She was later charged with and convicted of possession of a controlled substance and possession of an identification card with the intent to commit fraud.
On May 12, 2008, the child’s then-seventeen-year-old half-sister, M.R., appeared at the continued section 366.26 hearing, objected to the child being adopted, and requested a continuance, which the court granted. On June 11, M.R. filed a section 388 petition, asking to be allowed to join and participate in the child’s section 366.26 hearing and to be considered for placement and adoption.
On September 15, 2008, the juvenile court held a hearing on M.R.’s section 388 petition before holding the section 366.26 hearing. M.R. was not present, and had not visited with the child since being emancipated in July 2008, although she maintained telephone contact. M.R. was scheduled to enlist in the Army and planned to give temporary guardianship of her own daughter to her older sister, P.R. The court denied the section 388 petition as to the request for placement or adoption, but granted it as to allowing M.R. to participate in the section 366.26 hearing.
At the section 366.26 hearing, mother testified as to the quality of the parents’ visits with the child and the child’s bond with them and with M.R., as did father. After hearing argument, the juvenile court terminated parental rights and ordered a permanent plan of adoption with the child’s current caretakers. Mother and father each filed a notice of appeal.
Discussion
1. ICWA
Mother and father argue that the court’s orders terminating parental rights to the child should be reversed because: 1) the Department did not comply with its duties under ICWA; and 2) the juvenile court erred when it found that ICWA had been complied with. The Department concedes this issue, but asks for only a limited reversal so it can address the notice defects. We agree with the Department and order a conditional reversal with a limited remand. (In re Francisco W. (2006) 139 Cal.App.4th 695, 708.)
2. Exceptions to the Preference for Adoption
Welfare & Institutions Code, section 366.26 subdivision (c)(1) provides, in part, “If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21 or subdivision (b) of Section 366.22, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” Thus, the Legislature has expressed its preference for adoption in all cases in which a court finds that a minor cannot be returned to his or her parent and is likely to be adopted if parental rights are terminated. (In re Casey D. (1999) 70 Cal.App.4th 38, 51.) Section 366.26 provides, however, that the court may chose not to terminate parental rights if it finds “a compelling reason for determining that termination would be detrimental to the child” due to one or more enumerated circumstances. (§ 366.26, subd. (c)(1)(B).) These circumstances include the so-called parental relationship exception and the sibling relationship exception. (§ 366.26, subds. (c)(1)(B)(i) & (c)(1)(B)(v).) If the court finds a compelling reason not to terminate parental rights, it may select a permanent plan of guardianship or long-term foster care rather than adoption. (§ 366.26, subd. (c)(4)(A).)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The parents contend that we must reverse the order terminating their parental rights to the child because the juvenile court incorrectly determined that the parental relationship exception applies. Mother also contends the sibling relationship exception applies. We review the juvenile court’s determination on each of these issues for abuse of discretion. (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
A. The Parental Relationship Exception
Section 366.26, subdivision (c)(1)(B)(i) permits the court to decline to terminate parental rights if the parents “have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.” The parents contend that they regularly visited the child and thereby nurtured a beneficial relationship with her, and thus the court was precluded from terminating their parental rights.
Once the juvenile court determines that the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child. (In re S.B. (2008) 164 Cal.App.4th 289, 297.) It is not enough to show that the child derives some benefit from the relationship with her parent; the parental relationship exception applies only in an exceptional case in which there are compelling reasons sufficient to overcome the strong statutory preference for adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) In addition, the exceptions provided for in section 366.26, subdivision (c)(1)(B) do not mandate that the court choose a permanent plan other than adoption if certain conditions exist; on the contrary, subdivision (c)(1)(B) merely permits the court to do so if the court determines that there is a compelling reason not to terminate parental rights. (In re Celine R., supra, 31 Cal.4th at p. 53.) This is, as noted above, a “quintessentially discretionary” decision. (Jasmine D., supra, 78 Cal.App.4th at p. 1351.) A reviewing court is empowered to find an abuse of discretion only if no reasonable judge would have made the challenged decision. (Ibid.) Accordingly, it is only in the rarest of cases that a reviewing court can say that the juvenile court abused its discretion by finding that the circumstances are not so exceptional as to compel the court to decide against termination of parental rights.
In order for the exception to apply, the parent must present evidence that continuing the parental relationship would “promote[] 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 re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The preference for adoption is overcome only if there is such a “substantial, positive emotional attachment” between the parent and child that the child would be “greatly harmed” by severing it. (Ibid.)
Here, Mother testified that she visited with the child as often as she was allowed, initially overnight and weekend visits, then twice weekly, then once per week, and then after services were discontinued, once per month. Mother stated that she only missed one visit because of the death of her sister. She testified that the child calls her “Mommy” and father “Dad” and calls the foster mother “grandmother” in Spanish. Mother testified that the visits always went well, and that, when it was time to end the visits, the child’s reaction ranged from “saying good-bye and I love you to crying and not wanting to leave.” She also stated that the foster mother told her the child would ask “When am I going to see my mom?” or “Am I going to see my mommy today?” When asked whether it would be a detriment to the child to be separated from the family, mother answered “It would be to all of us, yes.”
Mother testified that the overnight and weekend visits were stopped because the parents lost their apartment.
Father’s testimony was consistent with that of mother. Father described the child as “fairly sad” at the end of visits. Father testified that “I feel there’s a bond, definitely.”
The social worker’s reports are fairly consistent with the above testimony, but emphasize the child’s bond with her foster family. In a status review report filed December 21, 2007, the social worker reported “The parents consistently attend the family visits, and it is reported that the character of these contacts are very positive.” In a status review report filed June 27, 2008, the social worker stated that the child “does not show signs of separation anxiety at the end of visits, and has waved to her parents saying “Bye, Friends.” In the report filed September 10, 2008, the social worker’s assessment was that the child’s “attachment to her caregivers and their family is a strong bond that is not observed with her natural family . . . . When asked who her mommy is [the child] names her caregivers and their children.”
The parents bear the burden on appeal to establish that the juvenile court abused its discretion when it determined that the child would not be “greatly harmed” by severing the parental relationship, and that the benefit the child receives from her relationship with her parents is not outweighed by the benefit of a stable adoptive placement. After reviewing the evidence in this record, we cannot say that the parents have succeeded in establishing that the juvenile court so abused its discretion.
B. The Sibling Relationship Exception
Section 366.26, subdivision (c)(1)(B)(v) permits the court to decline to terminate parental rights if 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.” Mother asserts that the exception applies because the child had a strong bond with her older half-sister, M.R.
In order for the sibling relationship exception to apply, the court must find that terminating parental rights will substantially interfere with the child’s relationship with her siblings. Mother does not explain how, under the circumstances of this case, the decision to terminate parental rights would affect the child’s relationship with M.R. We recognize that the child does have a relationship with M.R. Although they did not live together because the child was detained at the age of two weeks, M.R. made a considerable effort to visit with the child while she herself was a dependent child, monthly, and later weekly, and brought along her own daughter. Father testified that M.R. and the child are “very close” and have a “normal sister relationship.”
The evidence on this record indicates that allowing the child to be adopted by her foster parents caretakers will not interfere with the relationship between M.R. and the child. First, the foster parents have stated that they are open to allowing visits to continue, and in mediation offered to allow visits four times per year, although M.R. rejected the offer pending her section 388 petition. Second, at the time of the section 366.26 hearing, M.R. was in the process of enlisting in the Army and had to make arrangements for the care of her own daughter, and so would not likely be visiting more often than the offer from the foster parents. In addition, M.R. had not visited with the child since July of 2008, when she was emancipated. Thus, in the absence of any evidence that the child’s relationship with M.R. would be affected in the event she were adopted, the court did not abuse its discretion by failing to apply the sibling relationship exception.
Disposition
The order terminating parental rights is conditionally reversed, and we order a limited remand, as follows:
The juvenile court is directed to order the Department to give notice in compliance with ICWA and related federal and state law.
Once the juvenile court finds that there has been substantial compliance with the notice requirements of ICWA, it shall make a finding with respect to whether the child is an Indian child. If at any time within 60 days after notice has been given there is a determinative response that the child is or is not an Indian child, the juvenile court shall find in accordance with the response.
If there is no such response, the juvenile court shall find that the child is not an Indian child. If the juvenile court finds that the child is not an Indian child, it shall reinstate the original order terminating parental rights.
If the juvenile court finds that the child is an Indian child, it shall set a new section 366.26 hearing and it shall conduct all further proceedings in compliance with ICWA and all related federal and state law.
We concur:McKINSTER J. MILLER J.