Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD223831, JD223832
HULL, J.
Appellant J.A. is the mother of S.G. (14 months old), M.G. (five months old), J.T. (four years old), and Jered T. (six years old) (collectively referred to as the minors). Steven G. is the father of S.G. and M.G.; Bernard T. is the father of J.T. and Jered T.
The ages reflected herein coincide with the ages of the minors at the time they were first detained in April 2006.
Steven G. also has four other children (collectively referred to as the half siblings), each the subject of a separate dependency action.
Appellant gave birth to another child fathered by Steven G.--Mayson G.--subsequent to the filing of the petition in this matter. Mayson G. is the subject of a separate but related dependency action, case No. JD226233, and was also the subject of the request for judicial notice filed by appellant in this action (and denied by this court).
Appellant appeals from an order of the juvenile court terminating parental rights as to S.G. and J.T. (Welf. & Inst. Code, §§ 366.26, 395.) She makes the following contentions: (1) the Sacramento County Department of Health and Human Services (the Department) failed to provide notice in accordance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901, et seq.) as to either father, and failed to inquire of Steven G. regarding his Indian heritage; (2) the evidence was insufficient to support the juvenile court’s finding that termination of parental rights as to S.G. and J.T. would not substantially interfere with the minors’ sibling relationships; and (3) the juvenile court failed to obtain a bonding study between the minors prior to terminating parental rights, thus violating due process. We shall vacate the juvenile court’s order terminating parental rights as to J.T. and remand the matter to the juvenile court for proper compliance with ICWA. We shall affirm the juvenile court’s order as to S.G.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
On February 21, 2006, the Department filed two juvenile dependency petitions. The first, case No. JD223831, alleged failure to protect S.G. as a result of appellant and Steven G.’s continued substance abuse and failure and refusal to rehabilitate. The second, case No. JD223832, alleged failure to protect J.T. as a result of appellant’s continued substance abuse and failure and refusal to rehabilitate, and permitting unsupervised contact between J.T. and Steven G. with knowledge of Steven G.’s use of marijuana and cocaine in the minors’ presence. The minors were not initially detained and were permitted to live in the home with appellant on the condition that Steven G. not reside there.
At the initial hearing on March 7, 2006, the court made no findings related to ICWA due to the absence of the parents. The parents were again absent from the jurisdictional hearing on April 7, 2006. The Department reported that the minors had been placed into protective custody due to continued risk arising from appellant’s and Steven G.’s continued substance abuse.
Both appellant and Steven G. were present at the detention hearing on April 12, 2006. The Department filed first amended petitions adding allegations regarding appellant’s and Steven G.’s continued failure to participate in treatment or utilize services designed to help ameliorate the risk of neglect to the minors and their siblings. The court found continued placement of the minors in appellant’s home was contrary to the minors’ welfare and ordered emergency detention pending further hearing.
Neither appellant nor Steven G. were present at the continued hearing the following day. The court made no findings regarding ICWA, noting only that further inquiry would be made “when the parents come forward.” The court issued a general detention order as to all four minors, and ordered that reunification services be provided to the parents.
The first hearing contained in the Reporter’s Transcript is a six-month review hearing on November 3, 2006. It is not clear whether prior hearings were not transcribed, or were transcribed but simply not included as part of the record.
The minors were initially all placed together in the same foster home, and maintained weekly visits with their half siblings.
Appellant and Steven G. were not present for the initial jurisdictional hearing on April 21, 2006, and their appearance at subsequent hearings was seldom and sporadic.
Bernard T. appeared at the June 2, 2006, jurisdictional hearing. The court ordered him to complete and return the Indian Ancestry Questionnaire and to provide the Department with a completed Indian Ancestry Questionnaire, and ordered the Department to provide the “Choctaw tribes” with notice of the dependency proceedings. The record includes a completed Questionnaire marked “received” by the Department on June 28, 2006. The record also includes a Notice of Involuntary Child Custody Proceedings for an Indian Child (Form JV-135) which was mailed to the BIA and several Choctaw Indian tribes.
On July 21, 2006, the Department filed second amended petitions adding allegations of appellant’s and Steven G.’s failure to protect the minors due to continued substance abuse and failure to submit to drug testing or avail themselves of reunification services provided to them.
The parents were not present at the August 4, 2006, hearing. In their absence, the court sustained the allegations in the second amended petitions, adjudged the minors dependent children of the court (§ 300, subd. (b)), and continued out-of-home placement of the minors. Although originally placed together, continued inappropriate sexual behavior and touching between Jered T. and his sister, J.T., led to the removal of Jered T. and M.G., who were placed together in another home.
Appellant and both fathers failed to reunify and the court terminated services on May 1, 2007.
At the joint request of counsel for appellant and both fathers, the juvenile court ordered three bonding studies: one to study the bond between the minors and appellant; one to study the bond between the minors and Steven G.; and one to study the bond between the minors and their half siblings. All three studies were completed prior to the section 366.26 hearing. The study to assess the bond “between the [minors] and their four older half-siblings,” and the study to assess the bond between the minors and appellant, both concluded that the minors would not suffer any significant emotional detriment as a result of termination of parental rights and continued foster care or adoption. An assessment of the bond between S.G. and M.G. and their biological father, Steven G., resulted in the same conclusion.
The August 15, 2007, selection and implementation report concluded S.G. and J.T. were generally adoptable and recommended a permanent plan of adoption. The report further concluded Jered T. and M.G. had a high probability of adoption and, although they were found to be difficult to place, recommended a permanent plan of adoption for them as well. The report also concluded, as had the earlier permanency review report, that ICWA “does not apply.”
Court convened on October 16, 2007, for a pretrial and selection and implementation hearing (§ 366.26) regarding S.G. and J.T., a progress report hearing regarding Jered T., and a jurisdictional hearing regarding Mayson G. With respect to Mayson G.’s case, the court inquired for the first time whether Steven G. had any Native American heritage. Steven G. informed the court he had “[v]ery little Cherokee, Blackfeet Indian.” The court noted the Department “did notice the Bureau of Indian Affairs, the Cherokee Nation, and the Blackfeet Tribe,” and asked Steven G. to review the Notice of Involuntary Child Custody Proceedings for an Indian Child (Form JV-135) to confirm its accuracy. After reviewing the form, Steven G.’s attorney informed the court of several corrections. The court ordered the Department to submit a corrected JV-135 regarding Mayson G. prior to trial.
The parents were not present at the contested hearing on December 3, 2007. The court found S.G. and J.T. adoptable and terminated parental rights as to the two minors.
DISCUSSION
I
We first address appellant’s claims as they relate to S.G. Steven G. filed a notice of appeal as to S.G. and, together with appellant, filed a joint notice of appeal as to J.T. Steven G.’s appeal as to S.G. was dismissed for failure to file an opening brief or request counsel. Because appellant failed to file a notice of appeal as to S.G., she has forfeited her right of appeal as to that minor. This opinion therefore addresses only those contentions related to J.T.
II
Appellant contends the Department failed to provide the Indian tribes and the Bureau of Indian Affairs (BIA) with readily available information critical to the determination of J.T.’s Indian heritage, and failed to provide continuing notice of the dependency proceeding despite the lack of a finding by the juvenile court that ICWA did not apply. We agree with the first contention, and therefore need not address the second.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the Department have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d).)
ICWA notice must include the following information, if known: the name of the child; the child’s birth date and birthplace; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names of the child’s mother, father, grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, and current and former addresses; and a copy of the petition. (§ 224.2, subd. (a)(5).)
Here, the notices, mailed to the BIA and the tribes on June 29, 2006, included the name of the father, Bernard T., and his last known address, and indicated he might be a member of the “Choctaw” tribe but had no additional information other than the fact that his grandmother, who lives in Mississippi, might have more information. The form noted that Bernard T.’s birth date and birthplace were unknown.
However, as appellant’s reply brief correctly points out, the Department’s own records--i.e., the addendum report dated June 30, 2006 and the child welfare services case plan update attached thereto--indicate the social worker met with Bernard T. on May 25, 2006 and learned that he was born in Waynesboro, Mississippi on “12/10/1959.”
Because the Department had knowledge of those critical pieces of information prior to service of the notices, it cannot be inferred that proper notice with all relevant, known, information was sent to all potentially applicable tribes. “[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) Notice is meaningless if inaccurate or incomplete information is presented to the tribe. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) Here, the notices sent were incomplete. Accordingly, we shall remand the matter to the juvenile court so that it may direct new notices be sent to the tribes and the BIA to include Bernard T.’s birth date and birthplace, along with any other relevant information presently known to the Department.
III
Appellant contends the juvenile court should have applied the exception to adoption that applies when adoption will result in a “substantial interference with a child’s sibling relationship . . . .” (§ 366.26, subd. (c)(1)(E).) In evaluating whether this exception applies, 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)(E).) “[E]ven if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court then weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide.” (In re L.Y.L. (2002) 101 Cal.App.4th 942, 952-953.)
The party claiming the exception has the burden of establishing the existence of any circumstance which constitutes an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 1463(e)(3); Evid. Code, § 500.)
The court must consider the interests of the adoptive child, not the sibling, in determining whether termination would be detrimental to the adoptive child. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813; In re Celine R. (2003) 31 Cal.4th 45, 49-50.) “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.)
On this record, appellant has not established that the sibling exception applies. As a preliminary matter, appellant’s counsel objected to the recommendations set forth in the August 15, 2007 report and joined in the arguments offered by father’s counsel which focused on S.G. alone, but offered no additional argument related to J.T. regarding the sibling relationship exception or otherwise. Appellant failed to offer any evidence of a substantial bond between J.T. and her siblings, or that separation of J.T. from her siblings would be detrimental.
Counsel for Steven G. objected to the finding of adoptability as to S.G. and to the termination of parental rights, requesting that the juvenile court find an exception to adoption based on “the bond that S.[G.] has with the father and also the bond that S.[G.] shares with other siblings in this matter.” The remainder of counsel’s arguments were limited to the adoptability of S.G. and the bond between S.G. and her father.
Appellant now urges that the bond is demonstrated by the fact that all four minors were initially placed together, the relationship between J.T. and Jered T. is very strong, and Jered T. and M.G. continued to visit their two siblings four to five times a week even after they were moved to alternate foster care.
While the record confirms that the minors enjoyed weekly supervised visits with appellant, Steven G. and the four half siblings, and that they continued those visits despite removal of two of the minors to an alternate foster home, those facts do not compel a determination that the relationship between J.T. and her siblings is so significant that termination of parental rights would be detrimental to her. Although J.T. is particularly bonded to her brother, Jered T., both children adapted well after J.T. was removed and placed with S.G. in a different foster home. Moreover, all four of the minors are quite young. At the time of the section 366.26 hearing, J.T. was just shy of five years old, having spent four years at appellant’s home with her other siblings, three months in foster care with those three siblings, and nearly five months in a different foster home with S.G. While J.T. and her siblings shared placements and experiences in foster care, given her age, it cannot be said that any possible detriment to her would be so significant as to outweigh the benefits to her of a stable permanent home.
Appellant argues the bonding assessment failed to assess the bond between the minors themselves. Not so. Three bonding studies were conducted. One study focused on the relationships “between the [minors] and their four older half-siblings.” However, that study included observations not only of interactions between the minor siblings and their half siblings, but also of interactions between the minors themselves. The assessor reported that all of the minors appeared to enjoy visits with each other, as well as with their half siblings and parents. More important, perhaps, is the fact that nothing in the assessor’s report suggested the minors were so closely bonded they would suffer serious detriment if placed separate from their siblings.
Finally, appellant argues that there is no assurance the minors would be permitted to visit each other or maintain the bond if adopted, and that J.T.’s close attachment to her much older half siblings demonstrates that she would be attached to Jered T. and M.G., who are both closer to her in age. Both claims require us to speculate, an act in which we are not inclined to engage.
The juvenile court found the sibling bond exception did not apply. That finding is supported by substantial evidence.
IV
Appellant contends the juvenile court failed to order a bonding study between the minors themselves, thereby violating her due process rights. Not having raised that issue before the juvenile court, appellant has forfeited the issue for appellate purposes. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1138-1139.)
In any event, appellant’s argument fails on the merits. “The applicable standard of review is whether, under all the evidence viewed in a light most favorable to the juvenile court’s action, the juvenile court could have reasonably refrained from ordering a bonding study. [Citation.]” (In re Lorenzo C., supra, 54 Cal.App.4th at p. 1341.) As previously discussed in section II of this opinion, the studies that were conducted for the purpose of assessing the bond between the minors and their half siblings and the minors and their parents implicitly included an assessment of the bond between the minors themselves. While the studies certainly confirm that the minors have relationships with one another through weekly visitation, there is nothing to suggest there exists a bond so significant that termination of parental rights would interfere with those sibling relationships, particularly the relationship between J.T. and her siblings.
DISPOSITION
The order terminating parental rights as to J.T. is vacated, and the matter is remanded to the juvenile court with directions to order the Department to provide proper ICWA notice to the relevant tribes and BIA, including the birth date and birthplace of Bernard T., and to comply with all statutory requirements regarding filing of notices and return receipts with the juvenile court. If, after proper and complete notice, the BIA or a tribe determines that the minor is an Indian child as defined by the ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of the ICWA. If, on the other hand, no response is received or the tribes and the BIA determine the minor is not an Indian child, all previous findings and orders shall be reinstated. The juvenile court’s orders related to S.G. are affirmed.
We concur: SIMS , Acting P.J., DAVIS , J.