Opinion
H025024.
7-30-2003
In re N. P. et al., Persons Coming Under the Juvenile Court Law. SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDRENS SERVICES, Plaintiff and Respondent, v. MELINDA P. et al., Defendants and Appellants.
The parental rights of appellant Melinda P. and appellant Edward F. were terminated as to their children E. and J., and Melindas rights were terminated as to her daughter N.P. On appeal, they assert that (1) proper notice was not given under the Indian Child Welfare Act (ICWA), (2) the juvenile courts adoptability findings were not supported by substantial evidence and (3) the juvenile court prejudicially erred in failing to find that the parental relationship or sibling relationship exception to termination of parental rights applied here. The attorney for the children has apprised this court of events that took place during the pendency of this appeal that may call into question the juvenile courts adoptability findings. We conclude that a remand is required to permit the juvenile court to determine whether proper notice has been given under the ICWA. We further conclude that the events that have occurred during the pendency of this appeal cast doubt on the juvenile courts finding that N. is adoptable and therefore we reverse the juvenile courts order as to N. and remand for an updated review hearing at which the juvenile court shall reconsider whether N. is adoptable.
I. Factual and Procedural Background
Melinda is the biological mother of six children by four different men. The eldest two children are twins, born in 1991, who were removed from her custody in 1994 after being severely abused and sexually exploited. Her parental rights were terminated, and these two children, T1 (the girl) and T2 (the boy), were adopted by a foster family that we will refer to as TF. Melinda gave birth to N. in January 1995 and to S. about a year later. N. and S. do not share a father. N.s father has never been identified. S. has been placed in a guardianship with Melindas aunt and uncle since he was nine months old. Melinda gave birth to E. in July 1999 and to J. in August 2001. Edward F. is the biological father of E. and J.
Shortly before J.s birth, the Department received a referral regarding E. All three children were physically removed from Melindas custody on October 11, 2001. By that date, J. had been in Melindas care for just 10 days after having been released from the hospital following a lengthy hospital stay necessitated by his premature birth. The original dependency petition was filed by respondent Santa Clara County Department of Family and Childrens Services (the Department) on October 16, 2001, and the children were detained and placed in foster care. N. and E. were placed together in one foster home, and J. was placed in a separate foster home for "medically fragile" children. An amended petition was thereafter filed alleging that the children came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300, subdivisions (b) (failure to protect), (d) (sexual abuse) and (j) (abuse of sibling).
Melinda had a history of crack cocaine use and mental illness. Her cognitive functioning was that of a 12 to 14-year-old. N. and J. suffer from having been exposed to crack cocaine in utero, and E. probably does also. Edward F. beat Melinda and kicked her in the stomach when she was pregnant with J. After J.s premature birth, Melinda demonstrated poor judgment and lack of concern for J.s health. N. reported that Melinda had hit her and E. and that Edward F. had beaten both Melinda and E. in N.s presence. N. also disclosed that Edward F. had beaten her with a belt and sexually abused her. N. said her godfather, with whom she had lived for a period of time, had also beaten her and sexually abused her.
Although N. claimed that a scar on her arm was from Edward F. hitting her, Melinda asserted that the scar had been inflicted by S., who had bitten N.
Although she was nearly seven years old when she was detained, N. had never attended school. She had moderate to severe delays in language skills, judgment and intellectual functioning and in fine and gross motor skills. N. also suffered from selective mutism. N. had seven cavities that needed to be filled. E. had severe language delays, serious eating problems and was underweight when he was detained. Four of his teeth were rotten and had to be pulled. The loss of his teeth threatened his ability to speak and eat. E. was notably physically aggressive and was unusually prone to hitting N. Yet N. and E. seemed to be "very attached." J. was a calm, healthy baby who slept well.
The November 2001 social workers report noted that the social worker had contacted the adoptive parents of T1 and T2 (hereafter the TF foster parents), and they had expressed interest in having N. and the two boys placed in their home "and if needed, they are willing to adopt all three of the children." "They are very excited about the prospect of the twins getting to know their half-siblings . . . ." In January 2002, N. was moved from her original foster home to the TF home where T1 and T2 lived. N. had never met these half-siblings before being placed in the TF home although she had heard about them.
The twins had been removed from Melindas custody prior to N.s birth.
In April 2002, the court took jurisdiction over the children under all three subdivisions. The social worker recommended that neither parent be offered reunification services and that the children remain in foster care pending a permanency planning hearing. Melinda sought an opportunity to reunify with the two boys, but she did not seek reunification with or custody of N. "Id rather have my daughter go out of California to have a better life with my family [in Michigan]." Melindas counsel asked the court to place the children with Melindas Michigan relatives or at least "fully look into" their suitability as a placement.
The court denied reunification services to both Melinda and Edward F. The children were removed from Melindas custody and ordered to remain in foster care pending the permanency planning hearing. Melinda was allowed supervised visits once a month with the children.
In foster care, N. and E. both slept and ate well. By March 2002, N. was reported to be "in excellent physical health" and enjoying her placement. She and T1 were "almost in separable." E. was also doing well in his foster placement, but he was reported to be "too aggressive in his play." J. was an "adorable" baby who slept through the night, took long naps in the morning and afternoon, was "an easy baby to care for," "smiles a lot and laughs" and was eating solid food.
In April 2002, E. was moved from his original foster home to the TF home. In May 2002, J. was also moved to the TF home. On June 10, 2002, the three children were removed from the TF home at the TF foster parents request "as DFCS was pursuing possible alternative placements which would match the needs of the childrens cultural heritage." The children were temporarily placed in the foster home where N. and E. had been previously placed. On June 17, 2002, the TF foster parents filed a petition seeking to be declared the de facto parents of the three children. On June 26, 2002, the children were returned to the TF home at the TF foster parents request. N. was devastated by the removal and was very happy to return to the TF home.
The record indicates that the TF foster parents are a Caucasian couple in their late 50s. The children are African-American.
When Edward F.s attorney mentioned this brief removal in argument at the end of the permanency planning hearing as a concern, the childrens attorney objected on the ground that this short removal was irrelevant to the issues before the court. The court sustained the objection, and Edward F.s attorney offered no further comments.
Although Melinda visited regularly with the children, she had difficulty during visits focusing on more than one child at a time. The social worker reported that "the children appeared to be not bonded with the mother." E. did not show any closeness to Melinda and did not look to Melinda for affection. E. demonstrated "a lot of aggression" during visits, and he ignored Melinda when she attempted to deter his misbehavior. Her attempts were rarely successful. Nevertheless, Melindas monthly visits with the children between April 2002 and September 2002 were deemed "appropriate" and "positive" by the social worker, and the social worker believed that the children suffered no detriment from the visits.
The Welfare and Institutions Code section 366.26 hearing was held in September 2002. The Department recommended that parental rights be terminated, and a permanent plan of adoption be selected. The social worker testified at the permanency planning hearing that the children did not have "an emotional" or "parent-child relationship" with Melinda or Edward F. Instead, she testified, the children had a "parent-child relationship" with the TF foster parents. Melinda asked the court to find that she had maintained regular visitation and that it would be in the childrens best interests to continue their relationship with her. She also asked the court to reject adoption because it would interfere with N.s relationship with S.
The court found by clear and convincing evidence that the children were likely to be adopted. It terminated parental rights and selected adoption as the permanent plan for all three children. Both Melinda and Edward F. filed timely notices of appeal.
It also granted the TF foster parents petition for de facto parent status.
II. Discussion
A. Indian Child Welfare Act
Both Edward F. and Melinda assert that the termination of their parental rights must be reversed because the Department failed to give proper notice under the ICWA. During the pendency of this appeal, the Department made an effort to notify the Bureau of Indian Affairs (BIA). We conclude that a remand is appropriate to allow the juvenile court to consider whether proper notice has now been given.
1. Background
The detention report of October 16, 2001 noted that Melinda had said she "believes there is some American Indian Heritage on the maternal side of the family; however, she was unable to identify a tribe and she further states that no one has ever been registered." At the October 16, 2001 detention hearing, the juvenile court determined that no notice was required to be given under the ICWA. In a November 2001 social workers report, the social worker stated that the ICWA "appears not to apply." The social worker repeated Melindas statement from the detention report and wrote that Edward F. "also believes there is American Indian Heritage within his family; however, he was unable to identify a specific tribe and he does not know of any family members who are registered." This same report stated that both Melinda and Edward F. were "of full African American descent." Melindas mother was identified by her full name as were Edward F.s parents. No further mention of the ICWA was made prior to the termination of parental rights.
After Edward F. and Melinda filed their opening appellate briefs raising this issue, the Department made an effort to comply with the ICWA. It sent a packet to the BIA. The packet contained a letter from the Department to the BIA and Forms SOC 318 (a request for confirmation of a childs status as Indian) and SOC 319 (a notice of involuntary child custody proceeding involving an Indian child) for each child. The Departments letter and the forms indicated that Melinda had identified her grandmother (the childrens great grandmother) by name and birthdate as the source of Indian heritage but was unable to identify any tribe. It further stated that Melinda "has no information in regards to her fathers Indian heritage." As to Edward F., the letter repeated the information from the November 2001 social workers report and said "the only information that I have on the paternal side of the family is the name of Mr. F.s mother, [C.I.]." The SOC 318 forms for all three children contained the information provided by Melinda about her grandmother, but the SOC 318 forms for E. and J. contained no information about Edward F.s mother, father or any other ancestors. Instead, these two SOC 318 forms stated "there is no known Indian heritage on the paternal side of the [childs] family." The BIA responded with a form letter that stated that there was "Insufficient information identifying a federally recognized tribe" on either the paternal or maternal side. The juvenile court apparently scheduled a hearing regarding the ICWA for March 11, 2003. We have not been informed that a hearing took place or that any findings were made by the juvenile court regarding the Departments compliance with the ICWA.
This court granted the Departments request for judicial notice of the documents that it sent to the BIA and the response that it received.
2. Analysis
Edward F. and Melinda assert that the Department erroneously failed to give notice to the BIA even though they had both indicated that they had Indian heritage. The Department claims that it had no obligation to give notice because neither Edward F. nor Melinda identified any particular tribe. It maintains that giving notice to the BIA would have been a "futile step" without any information about a tribal affiliation. The Department claims that the futility of such notice is borne out by the BIAs response to its belated notification.
The Department relies on In re O.K. (2003) 106 Cal.App.4th 152 (O.K.). In O.K., the mother indicated in advance of the detention hearing that she "may have Indian ancestry" but she provided no information regarding her family history or tribal affiliation. The Department sent notice to the BIA. (O.K. at p. 154.) The BIA responded that there was insufficient identifying tribal information. (O.K. at p. 154.) At the Welfare and Institutions Code section 366.26 hearing, the paternal grandmother stated "the young man may have Indian in him." She disclaimed any knowledge of her family history, was not an enrolled member, did not know whether she was eligible for membership and could not identify a tribe. The father made no comment regarding Indian heritage. (O.K. at pp. 154-155.) No notice was sent to the BIA regarding Indian heritage through the father. The juvenile court found that there was no reason to believe that the children were Indian children. (O.K. at p. 155.)
On appeal, the parents claimed that the juvenile court had erred because there was reason to believe that the children were Indian children by way of the father and no notice had been given to the BIA regarding the fathers possible Indian heritage. The court of appeal rejected the contention. It noted that "a juvenile court has reason to believe that a child is an Indian child" if, among other things, "any party to the case . . . informs the court that the child is an Indian child." (O.K. at p. 156.) The court of appeal concluded that notice was not required because the grandmothers statement was too "nebulous," "vague and speculative" to give a juvenile court any reason to believe that the children might be Indian children . (O.K. at pp. 156-157.)
The Department here attempts to liken the information provided to the social worker by Edward F. and Melinda to the statement made by the grandmother in O.K. This attempt fails. Unlike the grandmothers equivocal statement in O.K. that the father "may have Indian in him" and her disclaimer of any knowledge of her family history or of any connection to any Indian relative or tribe, the statements by Edward F. and Melinda were not equivocal, and each of them provided at least some information about their family history. Both of them stated unequivocally that they believed that they were of Indian heritage. Each of them provided the Department with the names of their parents, and Melinda provided further information that she believed her Indian heritage came from her mother. All of this information was provided to the Department shortly after the children were removed, but the Department apparently made no effort to obtain further information from Melinda or Edward F. about their Indian heritage but simply dismissed their assertions and deemed the ICWA inapplicable. The statements of Melinda and Edward F. were sufficient to give a juvenile court reason to believe that the children were Indian children. Consequently, these statements triggered the Departments obligation to inquire further to obtain adequate information from them and to provide timely notice to the BIA. The Departments failure to do so violated the ICWA.
The Departments notification of the BIA during the pendency of this appeal does not eliminate the necessity for a remand here. "While the petitioning agency may have the duty to provide ICWA notice, it is the role of the juvenile court, not the agency, to determine whether the ICWA notice is proper." (In re Nikki R. (2003) 106 Cal.App.4th 844, 852.) "It is a trial court function to receive evidence of [the Departments] notice efforts and to determine if they measure up to ICWA standards." (Nikki R. at p. 852.) "Making the appellate court the trier of fact is not the solution." (Nikki R. at p. 853, citation and quotation marks omitted.) In this case, it would be particularly inappropriate for this court to determine whether the Department has fulfilled its obligations. The record does not reflect whether the Department sought further information from Edward F. about his ancestry, and the Department did not provide the information that he had given them to the BIA. The appropriate disposition is a remand to the juvenile court for the court to decide whether the Department has complied with the ICWA.
B. Adoptability
Melinda and Edward F. challenge the juvenile courts findings that the children are adoptable. The childrens appellate attorney urges us to reverse the juvenile courts order as to N. because events subsequent to the permanency planning hearing have raised serious doubts about her adoptability.
Under Welfare and Institutions Code section 366.26, subdivision (b), the court must select one of four options as the permanent plan, and these four options are ranked in terms of preference. The first preference is to "terminate the rights of the parent or parents and order that the child be placed for adoption . . . ." (Welf. & Inst. Code, § 366.26, subd. (b)(1).) The second preference is to "make a finding under paragraph (3) of subdivision (c), identify adoption as the permanent placement goal and order that efforts be made to locate an appropriate adoptive family for the child within a period not to exceed 180 days." (Welf. & Inst. Code, § 366.26, subd. (b)(2).) The third preference is to appoint a legal guardian, and the fourth preference is to order the child placed in long-term foster care. (Welf. & Inst. Code, § 366.26, subds. (b)(3), (b)(4).)
"The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. [Citations.] [P] Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650, emphasis omitted.)
1. At the Time of the Permanency Planning Hearing a. J.
Although J. had some developmental delays due to his premature birth and exposure to crack cocaine in utero, J. was an "adorable," calm, healthy baby who slept well, "smiles a lot and laughs" and was "an easy baby to care for." J. was just over a year old at the time of the permanency planning hearing, and he had lived in the TF home for four months. The TF foster parents had committed to adopting him.
Melinda makes much of the fact that the TF foster parents had the children removed from their home in June 2002 for a 16-day period. However, neither she nor Edward F. attempted to present any evidence below regarding the circumstances of that removal. We find nothing in the record before us to indicate that the June 2002 removal of the children alone reflected that the TF foster parents were not committed to adopting the children.
J.s age, physical condition and emotional state clearly favored a finding that he was adoptable. The presence of willing adoptive parents merely confirmed this. The juvenile courts adoptability finding as to J. was supported by substantial evidence.
b. E.
When he was removed from Melindas custody, E. had severe language delays, serious eating problems and was underweight. Four of his teeth were rotten and had to be removed thereby threatening his speaking and eating ability. However, E.s eating problems disappeared in foster care, and he slept and ate well. His only reported problem was his physical aggressiveness. By the time of the permanency planning hearing, E. was three years old and had been living in the TF home for five months. The TF foster parents were planning to adopt him.
While E.s physical aggressiveness was a concern, his age and physical condition coupled with the presence of a prospective adoptive family at the time of the permanency planning hearing provided substantial support for the juvenile courts adoptability finding.
c. N.
N.s age and emotional state, on the other hand, provided far less support for an adoptability finding. She was nearing the age of eight at the time of the permanency planning hearing. While she was physically healthy, her emotional state was not healthy.
The social workers report stated conclusorily that N. was adoptable. "A social workers opinion, by itself, is not sufficient to support a finding of adoptability." (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) The only support the social worker offered for her opinion was N.s placement in the TF home and the suitability of the TF foster parents as adoptive parents.
N. had reported being sexually abused and beaten while in Melindas custody. When she began therapy in January 2002, the social worker described her as "extremely fragile." After a period of therapy, N.s therapist reported that N. "continues to present a constellation of extremely guarded, oppositional, anxious and highly sexualized behaviors in the playroom" during play therapy sessions. "She has difficulty making good eye contact, cooperating and still shows delays in her intellectual functioning." The "themes" of her play "center around violence," control and "sexualized play." N. "exhibits many behaviors of a child who has a significant attachment disruption."
Due to N.s extreme emotional fragility, once N. was placed in the TF home, the social worker and her therapist were adamant that N.s placement not be altered and that N. end her connection with her biological family so that she could "heal." At the same time, the social worker felt that it would be emotionally detrimental for N. to be moved away from her half-siblings. These circumstances resulted in the social workers complete reliance on N.s potential adoption by the TF foster parents to support her opinion that N. was adoptable.
"In some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child." (In re Sarah M., supra, 22 Cal.App.4th 1642, 1650.) Because, at the time of the permanency planning hearing, the TF foster parents had cared for N. for nine months and were aware of N.s emotional fragility but had nevertheless committed to adopting her, the juvenile court was entitled to rely upon their commitment to support a finding that N. was adoptable.
2. Subsequent to the Permanency Planning Hearing
Although the juvenile courts findings at the time of the permanency planning hearing were supported by substantial evidence, at the request of the appellate attorney for the children, we have taken judicial notice of documents recounting events that have taken place while this case was pending on appeal because these events raise questions regarding the continuing validity of the juvenile courts findings. We did so even though, ordinarily, an appellate court should only accept additional evidence on appeal to achieve final disposition of the matter rather than to support a reversal and a remand for further proceedings.
An appellate court may accept additional evidence on appeal in a case such as this where justice will be served by its acceptance. "In all cases where trial by jury is not a matter of right or where trial by jury has been waived, the reviewing court may make factual determinations contrary to or in addition to those made by the trial court. The factual determinations may be based on the evidence adduced before the trial court either with or without the taking of evidence by the reviewing court. The reviewing court may for the purpose of making the factual determinations or for any other purpose in the interests of justice, take additional evidence of or concerning facts occurring at any time prior to the decision of the appeal, and may give or direct the entry of any judgment or order and may make any further or other order as the case may require. This section shall be liberally construed to the end among others that, where feasible, causes may be finally disposed of by a single appeal and without further proceedings in the trial court except where in the interests of justice a new trial is required on some or all of the issues." (Code Civ. Proc., § 909, emphasis added.)
"If compelling new circumstances arise which undermine the basis for a [parental rights termination] order during a parents appeal from such an order, an appellate court may and should take cognizance of and consider those changed circumstances." (In re Elise K. (1982) 33 Cal.3d 138, 150, 187 Cal. Rptr. 483, 654 P.2d 253 (Bird, C.J., concurring).) "If the government is going to terminate a childs ties to his or her natural parents, then there must be reasonable certainty that the child is not going to be left a legal orphan. If postjudgment developments cast doubt where the law requires certainty, there is no harm in allowing the trial court to take a second look at a childs adoptability." (In re Jayson T. (2002) 97 Cal.App.4th 75, 78.)
"The children who are taken from their parents and put into the juvenile dependency system deserve nothing less than that the courts primary concern should be their interests, not the traditional strictures of appellate procedure. The world will not end if appellate courts possess the power to overturn judgments terminating parental rights when there is evidence that the children may not be adoptable and the childrens interests will be served by the preservation of parental rights." (Jayson T. at pp. 88-89.) Of course the failure of an adoptive placement during an appeal does not alone cast doubt on a childs adoptability. Instead, it is where the childs adoptability was premised on the existence of that particular adoptive placement that a juvenile courts adoptability finding becomes questionable when that placement fails. (Jayson T. at pp. 88-90.)
We proceed to consider whether the events that have occurred while this case was pending on appeal cast sufficient doubt on the adoptability of any of children so as to merit reversal of the juvenile courts termination of parental rights.
a. Events During This Appeal
In January 2003, the social worker filed an interim report regarding the childrens placement in the TF home. The TF foster parents had contacted the Department in late December 2002 and asked the Department to remove N. from their home no later than January 15, 2003. N. was exhibiting sexualized conduct with T1 and T2, engaging in other disturbing conduct and showing signs of "Reactive Attachment Disorder." The TF foster parents, having experienced such a disorder with T2, were unwilling to deal with such a difficult situation again. N.s therapist reported that N. was at risk of engaging in further acting out behaviors that could pose a danger to herself and others in "a normal untrained home." She recommended a "residential placement." The Department recommended that N. be removed from the TF home and placed in a "therapeutic foster home" rather than a "community care facility."
The TF foster parents also reported in late December 2002 that they were having doubts about their commitment to adopting E. He was "quite dysfunctional," and they were concerned that he too might show signs of "Reactive Attachment Disorder." The TF foster parents did not seek E.s removal from their home but were not willing to commit to adopting him "at this time." They were, however, eager to proceed with the adoption of J.
In February 2003, the social worker filed a status report. All three children remained physically healthy. E. was developmentally on target, but N. and J. were developmentally delayed. N. had been removed from the TF home and placed in a foster home with foster parents who were trained in caring for children with special needs. She was adjusting well to this placement but was unhappy to be separated from her half-siblings. The social worker was assessing the possibility of an adoptive placement of N. with her maternal great aunt and great uncle in Michigan. The great aunt and great uncle had met with the social worker in early January 2003 and expressed their desire to adopt N. The great aunt identified herself as a licensed social worker, and the social worker was proceeding with an assessment and a home study. The social worker was optimistic that the great aunt would be able to provide N. with a stable home.
E. was continuing to have "problems with his peers and can be physically aggressive towards them." The social worker had informed the TF foster parents that "the priority was to keep the siblings together and if they could not commit to the adoption of [J.] and [E.] they would both be removed from their home." The TF foster parents responded by stating that they "are now committed to pursuing adoption of [J.] and [E.] and want to move quickly to finalize the adoption." At a February 10, 2003 hearing, the court did not alter the childrens permanent plans. It scheduled another hearing for April 14, 2003. We have not been informed as to any changes instituted at that hearing.
b. Analysis
In Jayson T., two boys, aged 6 and 9 at the time of appeal, who were considered a "sibling set," had been found adoptable based on the fact that they were placed in a home with foster parents who were willing to adopt them. (Jayson T. at pp. 82-83.) The adoptive placement failed while the case was on appeal, and the boys were placed in foster care. The reason the placement failed was that the prospective adoptive parents believed that one of the boys was suffering from "reactive attachment disorder" and that the other boy might also be affected by the disorder. The boys appellate attorney brought these events to the attention of the court of appeal, and the court of appeal reversed the termination of parental rights.
"Given the awful consequences of being wrong, adoptability findings must be relatively certain. The statute requires clear and convincing evidence. Thus, while adoptability may be relatively easy to establish at a .26 hearing when a child is already in an adoptive home, it is still so critical to the process that any genuine doubt should merit a second look. Here, for example, surely any evidence that the adopting parents considered one of the two boys to be suffering from reactive attachment disorder throws the adoptability finding into serious doubt." (Jayson T. at p. 91.) The court remanded the case to the juvenile court for a new hearing on the adoptability of the boys. (Jayson T. at p. 91.)
It is not our role to act as a factfinder with regard to the events that have occurred while this case was pending on appeal. That is the role of the juvenile court. Our role is limited to determining whether justice demands that the juvenile court be given the opportunity to reconsider its rulings in light of these events. We are convinced, as the childrens appellate counsel argues, that these events raise serious questions as to N.s adoptability. The only evidence produced at the permanency planning hearing regarding her adoptability was based on the existence of this particular prospective adoptive family. N.s extreme emotional fragility and her age weighed against her adoptability. The failure of this placement raises serious doubts as to whether N. is adoptable. While there is some evidence of a possible relative placement for N., those prospects have not yet been assessed by the juvenile court and are not so clearly and convincingly demonstrated by the sparse record before us that we are convinced that such a placement will likely succeed. Under these circumstances, in order to avoid making N. a legal orphan, justice demands that we reverse the juvenile courts order terminating Melindas parental rights as to N. and directing the juvenile court to hold a new hearing on the question of N.s adoptability.
The January 30, 2002 social workers report mentioned that "[a] great maternal aunt from Michigan" had expressed interest in having N. placed in their care and had "cleared the criminal background check." The Michigan relatives had last seen the children in 2000 when they were out here on a trip. The social worker was concerned that a relative placement would not be in N.s best interests. "[N.] needs to have closure with her biological family in order for her to heal and move forward in life. If she were to be placed with relatives, the mother, at times, will be a part of her life, which would prevent healing of [N.]."
The March 2002 social workers report continued this theme. "In order to fully protect the children, they need final closure from all of their biological family members because they cannot be trusted and to focus on adoption with non-relatives." N.s therapist believed that "non-relative placement for [N.] is definitely in her best interest. She needs to close her past chapter of abused living in order to give her every opportunity to succeed." At the April 2002 dispositional hearing, the social worker did not identify anything unsuitable about the Michigan relatives. However, the social worker reiterated that N.s therapist believed that N. should not be placed with relatives. The Michigan relatives were present at the September 2002 permanency planning hearing but no evidence was offered regarding them at that time.
Edward F. and Melinda argue that we should also reverse the juvenile courts orders with regard to E. and J. We do not believe that the record that is before us regarding the events during the pendency of this appeal merits such a course of action. While the TF foster parents did vacillate about their commitment to E., they have never wavered in their desire to adopt J., and now, knowing that the two boys are considered by the Department to be an inseparable sibling set, they have committed to adopting both of them. On this record, we believe that there is more risk that a reversal would disrupt the adoption process thereby harming the boys than that it would provide any benefit to the boys. Our conclusion is buttressed by a record that reflects that J. is clearly adoptable even in the absence of this prospective adoptive family and that E.s age and physical health favor adoption even if the current adoptive placement should fail. We decline to take the extraordinary step of reversing the courts juvenile courts orders as to the boys where the record before us reflects that the boys placement is intact and their foster parents have recently recommitted to adopting them.
C. Exceptions to Adoption
Melinda asserts that the juvenile court should not have selected adoption as the permanent plan because the termination of her parental rights will detrimentally sever a beneficial parental relationship between her and the children and a beneficial sibling relationship between the children and S.
Adoption must be selected as the permanent plan for an adoptable child and parental rights terminated "unless 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: [P] (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship . . . (E) There would be substantial interference with a childs 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 childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (Welf. & Inst. Code, § 366.26, subd. (c)(1).)
"The burden is on the party seeking to establish the existence of one of the section 366.26, subdivision (c)(1) exceptions to produce that evidence." (In re Megan S. (2002) 104 Cal.App.4th 247, 252.) Where there is a significant beneficial parental relationship or sibling relationship, the court must balance the benefit of that relationship against the benefit to the child of a permanent adoptive home. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951.) On appeal, the juvenile courts finding is subject to deferential review solely for sufficiency of the evidence. (Megan S. at p. 251.)
1. Parental Relationship Exception
Melinda has never had a positive parental relationship with the children. She has a long history of crack cocaine use and mental illness. Her cognitive functioning is that of a 12 to 14-year-old. She used cocaine while pregnant resulting in significant harm to at least two of these three children. She hit N. and E. and failed to protect them from physical and sexual abuse at the hands of Edward F. and others. During her brief exposure to J., she demonstrated a distinct lack of concern for his health.
While her visits with the children after their removal were not detrimental to the children, she did not behave as a parent during these visits. She made little effort to control E.s behavior, and she was unable to be attentive to more than one child at a time. The children did not demonstrate any significant attachment to her, and they had no difficulty separating from her at the end of a visit.
Melinda has never formed a significant relationship with J. E. has suffered from her neglect and has no bond to her. N. desperately needs to leave behind her memories of the abuse she suffered as a result of Melindas neglect. While Melinda did maintain regular visitation with the children after their removal from her custody, the evidence strongly supports the juvenile courts finding that the children would not benefit from continuing their relationship with a person with whom two of them have no bond and who merely reminds the third of the abuse she has suffered.
2. Sibling Relationship Exception
The record does not reflect that there was any existing sibling relationship between S. and J. or any significant sibling relationship between S. and E. Indeed, Melindas only assertion regarding a possible relationship between S. and E. is that E. "knew" S. Mere acquaintance with a sibling is not sufficient to establish a beneficial sibling relationship within the meaning of Welfare and Institutions Code section 366.26, subdivision (c)(1)(E).
The record does reflect that N. had an existing relationship with S. when she was removed from Melindas custody. S. was not in Melindas custody, but N. had visited with S., who was living with Melindas aunt, and was attached to him. N. had no contact with S. between October 2001 and September 2002, and there was no evidence that she suffered detriment as a result of this separation.
On the record before us, Melinda failed to meet her burden of establishing that there was such a significant beneficial sibling relationship between N. and S. that the detriment from its termination was sufficient to outweigh the benefits to N. of acquiring a stable permanent adoptive home. The juvenile courts finding that termination of parental rights was not precluded by N.s sibling relationship with S. is well supported by the record.
3. "Synergy"
Melinda contends that, even if neither the parental relationship exception nor the sibling relationship exception to adoption applies here, the "synergy" between the two exceptions permitted the juvenile court to find that the cumulative impact of the severing of parental and sibling relationships precludes adoption. We need not consider the legal validity of this contention because even an amalgamated exception (which is absent from the statute) could not support precluding adoption in this case. J. has no beneficial parental or sibling relationships that will be severed by adoption and is clearly adoptable. Melindas relationship with E. is not parental and is not beneficial to him. He has no beneficial sibling relationship with S. Melindas relationship with N. is decidedly harmful to N. because, in her therapists opinion, it is a continual reminder of the abuse she has suffered. Thus, while there was evidence of a beneficial sibling relationship between N. and S., there was no beneficial parental relationship that could "synergize" with it to create an amalgamated benefit to N. that outweighed the benefits to her of adoption.
III. Disposition
The juvenile courts orders terminating the parental rights of Edward F. and Melinda to J. and E. are reversed and remanded solely for the juvenile court to decide whether the Department has complied with the ICWA. If the court determines that the Department has not complied with the ICWA, it shall order the Department to comply and proceed accordingly. If the court determines that the Department has complied with the ICWA, it shall reinstate its orders as to J. and E. The juvenile courts order terminating Melindas parental rights to N. is reversed and remanded for a determination of ICWA compliance, as described above, and for an "updated review hearing" addressing N.s adoptability. "At the updated review hearing the court should ascertain whether [N. is] adoptable in light of the new information brought to this courts attention during the pendency of the appeal . . . . If [she is] adoptable, then parental rights should be summarily terminated. If, however, the court finds that [she is] not now adoptable . . ., then the court should consider an appropriate order under section 366.26, consonant with not terminating parental rights." (Jayson T. at p. 78.)
WE CONCUR: Elia, Acting P.J., Wunderlich, J.