Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J217893 & J217894. Wilfred J. Schneider, Jr., Judge.
Linda K. Harvie, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Sandra D. Baxter, Deputy County Counsel, for Plaintiff and Respondent.
Konrad S. Lee, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
M.G., mother of S.G. and B.G., was denied reunification services at the disposition hearing. In addition, visitation was limited to written correspondence, because she shot the father of the children, was facing murder charges, and the children were severely traumatized. She filed a petition for extraordinary writ (Cal. Rules of Court, rule 8.452; E045419) challenging the denial of services and visitation orders, and we affirmed. Subsequently, her parental rights were terminated (Welf. & Inst. Code, § 366.26), and she appeals, arguing that (1) the denial of visits violated her due process rights, (2) termination affects the relationship between S.G., B.G., and their half-sister, and (3) the finding the children were not Indian children under the Indian Child Welfare Act (ICWA) was erroneous due to various errors in notifying the Indian tribes of the dependency proceedings.
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
We conclude that (1) the limitation on visits did not violate mother’s due process rights; (2) mother forfeited any claim that severance of the parent-child relationship would interfere with the relationship of the siblings to a half-sibling by failing to raise this point in the trial court; and (3) there was no ICWA error.
BACKGROUND
S.G. and B.G. came to the attention of the San Bernardino County Children and Family Services (CFS) after it was discovered that mother had shot the father of S.G. and B.G. following a loud argument in October 2007. The three children, including mother’s teenaged daughter P.G., were taken into temporary custody. Mother admitted the shooting but stated it was an accident.
Mother’s teenage daughter, P.G., was subsequently placed with her father and dependency proceedings were eventually dismissed. P.G. is not a subject of this appeal.
A dependency petition was filed alleging mother failed to protect (§ 300, subd. (b)), and made no provision for support of the children. (§ 300, subd. (g).) The three children were detained in the home of a paternal aunt. Mother was authorized to have written communication with the children, but no telephonic or personal visits were ordered. Although the court ordered services to mother pending the development of a case plan, no actual services were provided.
At an early stage in the proceedings, mother indicated that both she and the children’s father had Native American heritage. However, the original notices that were sent to the tribes included only the mother’s married name, not her maiden name, and did not mention the names or birth dates of the maternal relatives who were alleged to have possible tribal affiliation.
At the jurisdictional hearing, the court found the allegations of the petition to be true, bringing the children within the provisions of section 300, subdivisions (b) and (g). The court awarded custody of P.G. to her father, placed S.G. and B.G. with their paternal aunt, denied mother reunification services, and set the matter for a hearing to select and implement the permanent plan. The court ordered sibling visits, but found that face-to-face visits between the children and mother would be detrimental. It therefore authorized only written correspondence between the mother and children.
On March 24, 2008, mother filed a notice of intent to file a writ petition. (Cal. Rules of Court, rule 8.452(a). She challenged the order setting the section 366.26 hearing, the denial of reunification services, and the order limiting visits to written correspondence. We affirmed the juvenile court orders in an unpublished opinion (E045419), but directed CFS to send corrected notices to the Indian Tribes, with complete information about relatives with Indian heritage.
In August 2008, CFS sent corrected notices of the dependency proceedings to numerous tribes, including, but not limited to the Huron, Blackfeet, Cherokee, Apache, Navajo, and Sioux Tribes, as well as the Sacramento Area Director of the Bureau of Indian Affairs (BIA), and the Secretary of the Interior.
On November 20, 2008, the court terminated parental rights. Mother timely appealed.
DISCUSSION
Mother seeks reversal of the order terminating parental rights on several grounds: (1) the denial of visits prevented her from establishing the parent-child exception to a finding of adoptability in violation of her due process rights, such that severance of the parent-child relationship constituted an abuse of discretion; (2) the juvenile court failed to insure visits between S.G., B.G., and their half-sister P.G.; (3) the juvenile court erred in finding that ICWA did not apply because at least three tribes had not conducted a thorough search; (4) the juvenile court failed to insure that all applicable tribes received notice of all the proceedings; and (5) the juvenile court failed to insure that the tribes received complete information. We address these issues separately.
1. The Denial of Visitation at the Disposition Hearing Did Violate Mother’s Due Process Rights at the Section 366.26 Hearing.
Mother claims that the limitation of visits caused the destruction of her relationship with her children and foreclosed her from being able to establish the existence of a beneficial parent-child contact exception to a finding of adoptability, violating her due process rights. As such, she claims the order terminating her parental rights was an abuse of discretion. We disagree.
Due process violations are not governed by the abuse of discretion standard, however. (In re Thomas R. (2006) 145 Cal.App.4th 726, 734.)
Due process guarantees apply in dependency proceedings to insure fairness in the procedure employed. (Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751, 756-757.) Different levels of due process protection apply at different stages of the dependency. (In re Thomas R. (2006) 145 Cal.App.4th 726, 733.) After reunification services are terminated and a section 366.26 hearing is set, the focus shifts from the parent’s interest in reunification to the child’s need for permanency and stability. (Ibid.)
Visitation is usually ordered in a dependency matter (§ 362.1, subd. (a)(1)(A)), but it is not an essential part of a case plan when the parent does not have reunification services. (In re J.N. (2006) 138 Cal.App.4th 450, 458-459.) Further, visitation is not allowed if it would be detrimental to the minor. (Id. at p. 458.) Here, visits were limited to written correspondence at the time of the dispositional hearing because neither of the children had asked to see mother, and both children had been severely traumatized by the events which led to the dependency. Further, mother’s correspondence with the children while she was in jail prior to the jurisdictional hearing was inappropriate.
Visitation is an essential component of a reunification plan. (In re Alvin R. (2003) 108 Cal.App.4th 962, 972.) It is an element critical to promotion of the parents’ interest in the care and management of their children, even if actual physical custody is not the outcome. (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 463.) But when reunification services are denied or terminated, the focus shifts away from the parents’ interest in the care, custody and companionship of the child. (In re Aaliyah R. (2006) 136 Cal.App.4th 437, 448.) If services are denied, the juvenile court has discretion to allow a parent to continue visitation with his or her child, unless it finds that visitation would be detrimental to the child. (In re J.N. (2006) 138 Cal.App.4th 450, 457.)
We conclude from these authorities that a parent who has been denied reunification services has a diminished right to visitation with his or her child, coextensive only with the child’s best interests. If visits are beneficial to the child, the juvenile court has discretion to order visitation. (§ 361.5, subd. (f).) As a matter within the court’s broad discretion, mother’s right to visit was diminished and the lack of visits, based on the prior finding of detriment, was not a constitutional violation.
Mother claims that the prior order, which we affirmed, impeded her ability to defeat a termination of parental rights. We cannot review the prior order limiting visits because that issue was determined in the prior writ proceeding. Mother is collaterally stopped from presenting such a question. (Machado v. Superior Court (2007) 148 Cal.App.4th 875, 886.) In this regard, mother’s assertion that the trial court did not make a specific finding of detriment when it limited visitation is a challenge to the prior order denying visitation, and we cannot reconsider that issue.
Further, the fact visits were limited to correspondence did not absolutely preclude her establishing a beneficial parent-child contact exception. The benefit exception is considered in the context of any limitations placed on visits by the court or CFS. (In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538.) While mother’s contact was limited, it was not denied outright. She had the capability of maintaining regular contact through correspondence. There was no due process violation.
2. Mother Forfeited Any Claim that Termination of Parental Rights Would Interfere With the Children’s Sibling Relationship With Their Half-Sister.
Mother claims the order terminating her parental rights must be reversed because her parental rights to the children’s half-sibling, P.G., remained intact, and she thus retained an interest in protecting P.G.’s sibling relationship to her half-sisters. Although mother argues she has standing to raise this argument, she did not preserve this ground at the time of the section 366.26 hearing, nor did she present any evidence to establish this existence of facts supporting this statutory exception to adoption. We agree.
A finding that a child is likely to be adoptable requires an order terminating parental rights unless the court finds a compelling reason for determining that termination would be detrimental due one or more of several circumstances. One exception to adoptability is a finding that there would be substantial interference with the child’s sibling relationship. (§ 366.26, subd. (c)(1)(B)(v).)
The party claiming an exception to adoption has the burden of proof to establish by a preponderance of evidence that the exception applies. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) The court is not under a duty to consider such exceptions sua sponte. (In re Daisy D. (2006) 144 Cal.App.4th 287, 291.) If a parent fails to raise one of the exceptions at the hearing, the juvenile court is deprived of the ability to evaluate the critical facts and make the necessary findings. (In re Erik P. (2002) 104 Cal.App.4th 395, 403.) It also deprives this court of an adequate factual record from which to conclude whether the trial court’s determination is supported by substantial evidence. (Ibid.)
In the present case, the only evidence relating to the sibling relationship is found in the section 366.26 report, where the social worker noted that “the girls maintain contact with their half-sister, P[.G.]” The only information provided by mother to indicate there might be an interference with visits is found in references to record of the writ proceeding, relating to circumstances present prior to the disposition order.
Mother has not adequately preserved an appellate claim that termination of parental rights would substantially interfere with the sibling relationship.
3. Adequacy of ICWA Notices.
Mother argues that (a) CFS should have emphasized certain information provided on the ICWA-030 forms, (b) CFS and the court should have more thoroughly reviewed the responses from the tribes, and (c) the court failed to insure the tribes received complete information in the ICWA notices that were sent.
However, mother concedes that the notices sent to the Blackfeet, Sioux, and Cherokee Tribes were adequate.
a. Neither CFS nor the Court is Required to Emphasize Particular Information About Particular Relatives.
The CFS has a duty to notify any tribe or the BIA of the filing of any involuntary child custody proceeding if the child is or may be eligible for membership in a tribe. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) The notice must include, among other things, the name of the Indian child, his or her tribal affiliation, a copy of the dependency petition, the petitioner’s name and address of petitioner’s attorney, and a statement of the right of the tribe to intervene. (In re Karla C. (2003) 113 Cal.App.4th 166, 175.)
Additionally, an original and a copy of each ICWA notice must be filed with the juvenile court along with any return receipts. (44 Fed.Reg. 67584, 67588 (Nov. 26, 1979), Guidelines for State Courts, § B. (5).) There is nothing in either ICWA or the federal Guidelines that requires CFS to emphasize any particular information on the forms. Indeed, a court is not required to wait for a determinative response from all the noticed tribes and return receipts. (In re N.M. (2008) 161 Cal.App.4th 253, 265.) There was no reversible error.
a. Neither CFS nor the Court Is Required to Insure that the Tribes Who Have Been Notified Have Thoroughly Searched Their Records.
Mother claims that the court erred in finding that ICWA did not apply because the letters received from three tribes revealed that the tribes had not conducted a thorough search. There is no authority to support the proposition that the juvenile court must insure that the tribes conduct a thorough search.
Nothing in the ICWA requires the court or CFS to emphasize certain information about certain relatives, particularly where mother does not indicate what information about which relatives should have been emphasized. CFS is only required to include relevant available information about blood relatives and possible tribal affiliations to aid the tribes in determining whether a child is an Indian child.
Further, it is difficult to conceive how a state court could enforce such a requirement on a sovereign tribal nation. Mother does not claim that the notices sent to the Blackfeet, Sioux or Cherokee Tribes contained incomplete information. There was no error in failing to insure the tribes conducted a thorough search of their records.
b. The Notices Satisfied the Requirements of ICWA.
Mother argues that other than the Blackfeet, Sioux or Cherokee, the ICWA notices were incomplete because CFS omitted the mother’s maiden name. While it is true the corrected notices did not include mother’s maiden name, this omission was rectified by the inclusion of information about mother’s parents and grandparents.
Prior to the section 366.26 hearing, CFS sent notices with corrected information to the BIA, the Huron Indian Tribes, Iroquois Tribes, the Navajo Nation, Apache Tribes, the Sioux and Cherokee Nations, and numerous other tribes that included both parents’ names, the grandparents’ names, and available information about great-grandparents and great-great-grandparents.
Mother did not object to the adequacy of the notice or the information contained in the notices at the hearing. Mother may not challenge the adequacy of the ICWA notice on appeal if she failed to raise a proper objection at the hearing following a limited remand. (In re X.V. (2005) 132 Cal.App.4th 794, 798, 804.) Although the ICWA finding was made at a regular section 366.26 hearing rather than a special remand hearing, this distinction is insignificant.
The purpose of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether the child is in fact an Indian child. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) The notice must therefore contain enough information to permit the tribe to conduct a meaningful review of its records to determine the child’s eligibility. (In re Cheyanne F. (2008) 164 Cal.App.4th 571, 576.) Even if mother had preserved the issue, deficiencies in an ICWA notice may be deemed harmless under some circumstances. (Id. at p. 577.)
Here, any omission to include the mother’s maiden name was harmless beyond a reasonable doubt because the notices included the names of mother’s biological parents and their possible tribal affiliation. The purpose of including mother’s maiden name is to determine whether mother’s parents were enrolled in a tribe, making mother eligible for membership, as well as her children. Our remand with directions to include this information was to facilitate this type of determination because the notices sent prior to the disposition hearing did not include adequate information about relatives. The corrected notices were adequate because detailed information about mother’s parents was provided.
In any event, the children were placed in a paternal relative’s home, a placement that followed the order of preferential placement under ICWA. (See 25 U.S.C. § 1915, subds. (a), (b).) So even if the children were found to be Indian children, no different outcome would result.
DISPOSITION
The judgment is affirmed.
We concur: Ramirez, P. J., King, J.