Opinion
B229055
10-12-2011
In re MICHELLE K. et al., Persons Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. K. K. et al., Defendants and Appellants.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant K. K. Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Hector D. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Los Angeles County Super. Ct. No. CK52974)
APPEAL from orders of the Superior Court of Los Angeles County. Sherri Sobel, Juvenile Court Referee. Affirmed.
Lori Siegel, under appointment by the Court of Appeal, for Defendant and Appellant K. K.
Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant Hector D.
Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
Appellants K. K. (Mother) and Hector D. (Hector), parents of Michelle and Moses K., contend the juvenile court's decision to terminate parental rights at the hearing held under Welfare and Institutions Code section 366.26 must be reversed because the court precluded appellants from introducing evidence relevant to the sibling relationship exception and that the court applied the incorrect standard in reaching its determination. Appellants further contend that the court erred in denying a request to transfer custody to Hector's parents and a request for a sibling attachment assessment study under Evidence Code section 730. Mother separately contends that the notice sent pursuant to the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)), was defective and that contrary to the court's ruling, Michelle and Moses met the definition of Indian children. We conclude that the requests for transfer of custody and an attachment study were properly denied, that under the evidence presented, Michelle and Moses were not Indian children, and that no ICWA violation occurred. We further conclude that although the court erred in rejecting certain evidence proffered at the hearing, reversal is not required.
Undesignated statutory references are to the Welfare and Institutions Code.
Hector joins in Mother's contentions. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 339 [non-Indian parent has standing to assert ICWA notice violation].)
FACTUAL AND PROCEDURAL BACKGROUND
A. Initial Section 300 Petition and Disposition
In 2006, in a separate proceeding, parental rights over two older siblings, Matthew and Marshall D., were terminated. The boys were subsequently adopted by Hector's parents, Rosa R. and Jose D. Mother gave birth to Michelle and Moses, the minors involved in the underlying proceeding, in November 2004 and January 2006, respectively. Because Mother was not using drugs, had appropriate housing and appeared to be meeting the children's basic needs, Michelle and Moses were not detained. Instead, in March 2007, Mother and the Los Angeles County Department of Children and Family Services (DCFS) entered into a voluntary family maintenance plan, which required Mother to attend a substance abuse program and undergo drug testing. By July 2007, Mother had relapsed, testing positive for methamphetamine and marijuana. Michelle and Moses were detained and placed in foster care.
In that prior proceeding, the court based jurisdiction on the findings that Matthew was born with a positive toxicology screen, that Mother and Hector had a history of substance abuse, that Mother was a frequent user of marijuana and amphetamine, that Hector was a current user of amphetamine, that Mother and Hector had a history of violent altercations, and that Hector struck Mother in July 2003.
Hector did not appear at any of the hearings in that proceeding and was found to be the biological father of Matthew and Marshall, not their presumed father.
At one point, Mother identified another man, Anthony R., as Michelle's father, but subsequent DNA testing ruled him out. Hector first appeared in the case in October 2009, several years after the detention. In February 2010, Hector submitted declarations of paternity, and the court found Hector to be the presumed father of Michelle and Moses.
Hector's whereabouts were unknown. His parents were contacted at the time of the detention in order to determine whether they would be custodians for the children. Rosa stated that she and Jose were unable to take custody because their apartment was too small and it would be "too much" for them. In addition, Rosa expressed the view that if the children were placed with strangers, Mother might be motivated to work harder to get them back.
Initially, DCFS recommended that Mother receive reunification services. However, in September 2007, after Mother missed a number of drug tests, tested positive and missed multiple sessions of her substance abuse program, the DCFS recommendation changed to no reunification services. By the time of the jurisdictional/dispositional hearing in November 2007, Mother had tested clean for a number of months and had been consistently attending the program. The court nonetheless followed DCFS's recommendation and denied services, having found jurisdiction appropriate due to Mother's five-year history of substance use and recent use of methamphetamine, amphetamine and marijuana.
At the time of this hearing, Mother was again pregnant. She gave birth to Michelle and Moses's younger sibling Amy in April 2008. Amy is not the subject of this appeal.
That order was affirmed in a prior appeal. (K. K. v. Superior Court (Feb. 27, 2008, B203846).) The court made no jurisdictional findings with respect to Hector, whose whereabouts were still unknown. Nor did it offer reunification services to Hector, as at that point, he was still an alleged father only.
B. Mother's 388 Petition and Revival of Reunification
In March 2008, while appeal from the original dispositional order was pending, Mother filed a section 388 petition which established satisfactory participation in her drug abuse program and regular negative testing. Mother further established that she was enrolled in college and visiting the children regularly. At the time, the children were not in a prospective adoptive home.DCFS recommended granting additional reunification services, in part because of Mother's "consistent visitation" and the children's "familial ties to the newborn Amy and siblings Mathew and Marshall." The court granted the petition in April 2008 and ordered DCFS to provide Mother reunification services.
Since the detention, Michelle and Moses had been in the care of foster mother Angie R., who did not wish to adopt.
This was shortly after the birth of Amy, who was not detained at birth.
In April 2009, after a year of Mother's satisfactory efforts in complying with the reunification plan, including completion of a substance abuse program and consistent visitation that progressed to unmonitored, Michelle and Moses were returned to Mother's custody. The court did not terminate jurisdiction and DCFS continued to provide family maintenance services.
In August 2008, Mother had begun having weekly unmonitored visitation with Michelle and Moses. Rosa brought the two older siblings to spend time with Mother, Amy, Michelle and Moses during those visits. In December 2008, Mother was given custody of the children for entire weekends. Rosa sometimes left the older siblings with Mother on the weekends as well, so that all five children could be together.
C. Section 387 Petition
In July 2009, Mother was arrested for shoplifting. In August, she allowed her half-brother, Marshall, and his father, Gary, to move into her apartment, although neither had submitted to a background check. On at least one occasion, Mother allowed Gary to watch the children. In September, Mother tested positive for marijuana, claiming she was using it for medicinal purposes. In early October 2009, DCFS learned that Mother had not been regularly attending the portion of the substance abuse program intended to prevent relapse. In addition, she had dropped out of school, which meant she was no longer eligible for a program that provided child care. On October 13, DCFS learned that Mother had left the children in the care of Hector. Interviews with Michelle, Mother and Hector revealed that he had been watching the children regularly. Michelle and Moses, along with their baby sister Amy, were detained. All three children were placed with Angie R. The detention report stated that Rosa was unable to take custody because she "adopted mother's two older children and is not able to care for additional children as she lives in a small two bedroom apartment with her husband." DCFS filed a section 387 supplemental petition alleging that Mother created a detrimental and endangering situation for the children by allowing Hector to provide child care in violation of court orders, and that Mother's substance abuse history and regular use of marijuana rendered her incapable of providing care for the children.
Mother had previously told the caseworker that the two men were drug users.
Mother provided a letter from a doctor approving her medical use of cannabis.
Immediately after the children were detained for the second time, DCFS recommended that Mother be offered family reunification services, including parenting classes, a drug treatment program with random drug testing and individual counseling to address domestic abuse, anger management and case issues. At the detention hearing, the court ordered DCFS to make the appropriate referrals. Mother stated she had already completed her programs and refused to participate in further services. She said she preferred to let Hector fight to get the children back. In December 2009, DCFS's recommendation for Mother changed to no reunification services. Hector stated that he was attending AA meetings and was on a waiting list for parenting and domestic violence classes. He further claimed he was submitting to random drug tests, which were clean. DCFS recommended no reunification services for Hector, as he was still an alleged father only.
Neither Mother nor Hector asked that his parents be given custody at the detention hearing.
Hector provided a letter from a substance abuse program indicating enrollment in October 2009 and evidence of multiple clean drug tests in December 2009 and January 2010. He also provided notes indicating participation in the program from October 2009 to January 2010.
At the January 2010 jurisdictional hearing, the court found the allegations of the petition true. At the request of Mother's counsel, the court ordered DCFS to investigate placement with Hector's parents.
At the February 2010 dispositional hearing, the court found Hector to be the presumed father of Michelle and Moses. During the hearing, Hector admitted he had used methamphetamine and marijuana for 13 years. He testified that he had completed a domestic violence program while in prison and had begun a substance abuse program in October 2009. In view of the age of the case (nearly three years) and the length of time Michelle and Moses had been in foster care (more than two years), the court ruled that reunification services could not be provided to either parent. However, the court specifically instructed counsel to advise Mother and Hector of their section 388 rights and expressed the belief that one or both of the parents would soon be submitting petitions for modification. The court stated: "I cannot tell you how much I hope that Michelle and Moses get to go home because they've spent a decent period of time with [Mother] who was a responsible parent. And it is extremely upsetting to this Court what happened here."
D. Subsequent Section 388 Petitions and Section 366.26 Hearing
Between the disposition in February and June 2010, no party filed a section 388 petition. Michelle and Moses remained in foster care. In June, DCFS identified a prospective adoptive mother. The children were taken to meet her. From the first meeting, the children appeared excited. They "made an immediate connection" and were "looking forward to spending more time with her." The children were transitioned into the prospective adoptive home over the next two months, and were settled into the home in mid-August. After the move, the caseworker reported that the children were adjusting well and were happy in their new home. They enjoyed playing with the neighbor's children, who were approximately the same age. Michelle had been enrolled in elementary school and Moses had been enrolled in preschool. The prospective adoptive mother appeared to be "meeting all of Michelle and Moses's medical, emotional and physical needs." They still had contact with Amy and Angie R., as their former foster mother, who retained custody of Amy, often babysat them. The prospective adoptive mother was open to continued contact with Mother and Hector.
The prospective adoptive mother at first appeared willing to adopt all three children, Michelle and Moses plus their sister Amy. However, she later stated that she could not take on all three children at once and wanted to accept placement of Michelle and Moses and defer a decision on Amy until after a period of adjustment.
On September 20, 2010, a few days before the scheduled date of the section 366.26 hearing (which had been continued several times), Hector filed a section 388 petition, seeking reunification services, an order placing Michelle and Moses with his parents, and/or appointment of an expert pursuant to Evidence Code section 730 to conduct a sibling attachment assessment. Hector presented evidence of participation in a substance abuse program and drug testing between November 2009 and August 2010. He also presented evidence that his parents had entered into a lease for a bigger apartment commencing in October.
DCFS's supplemental report indicated that between January and August 2010, Hector had had one positive test (in April) and two no shows (in January and March). During this period, Mother had either skipped scheduled drug tests or tested positive.
The section 366.26 hearing took place on September 27 and November 4, 2010. On the first day of the hearing, the court asked DCFS to address whether Hector's parents were considered for placement when the children were moved from the foster home to the prospective adoptive home. In a supplemental report, caseworker Virginia Lyle stated that she had contacted Rosa in October 2009, after the second detention, to ask if she and her husband would be willing to accept placement of any or all of the children. Rosa told Lyle she was unable to care for additional children. Lyle spoke to Rosa again in June 2010, informing her that the hearing terminating parental rights was imminent and that DCFS was willing to consider placement of the children with her and her husband. Rosa promised to speak to her husband and get back to Lyle, but did not call back. In the interim, another caseworker learned that Rosa's identification card had expired, precluding the live scan necessary for immediate placement. At the section 366.26 hearing, Lyle testified and confirmed that in the summer of 2010, she had asked Rosa to consider accepting custody of the children and that Rosa promised to discuss it with her husband and let Lyle know, but failed to get back to the caseworker. Lyle subsequently called Rosa, who said she was not able to take custody of the children and that there was no need for her to do so, because Hector was doing what he needed to do to regain custody. After this conversation, DCFS moved the children into the prospective adoptive home. Rosa never again brought up the subject of custody of Michelle and Moses, although she and Lyle had subsequent conversations. Lyle was concerned that Rosa was being "coerced" to seek placement of Michelle and Moses.
At the beginning of the hearing, the court stated it intended to deny Hector's section 388 petition to the extent it sought an order placing custody of Michelle and Moses with his parents. The minute order states that the section 388 petition was "denied." However, over the course of the hearing, the parties presented evidence relevant to whether placement should be transferred to Hector's parents. At the end of the hearing, the parties' counsel argued the custody aspect of the section 388 petition and the court addressed the issue of placement with Rosa and Jose, both in the context of section 388 and section 361.3, which requires the court to give "preferential consideration" to relatives for placement.
The report actually stated this conversation took place in October "2010", but at the hearing, Lyle testified that she had spoken with Rosa in October 2009 and that the date in the report was a typographical error.
Rosa confirmed that in October 2009, when the children were re-detained, she told the caseworker she could not take them. She claimed this was because she did not have the resources to obtain a bigger apartment. She subsequently moved to a larger place, with enough room and beds for Michelle and Moses. At the time of the hearing, the court overseeing the proceedings involving Amy was considering placing Amy with Rosa and Jose, and a caseworker had inspected the apartment and found it suitable.
The proceeding involving Amy had been transferred to another department. While this appeal was pending, the court in that department placed Amy with Rosa and Jose.
Called by Hector's counsel to address the issue of sibling bonding, foster mother Angie R. testified that when Michelle and Moses were first in her care, they were regularly visited by paternal grandmother Rosa and the older siblings. These visits took place approximately once a month, during Mother's monitored visitation, and lasted for three hours. More recently, the grandmother and older siblings had accompanied Hector during his weekly monitored visits. Michelle and Moses were also spending time with Amy because Angie R., who still had custody of Amy, provided child care for the prospective adoptive mother twice a week. Hector confirmed that when he took part in his regularly scheduled visitation with Michelle and Moses, Rosa would bring the older children and Amy would be brought to the visits by her caretaker. Rosa testified that she saw Michelle and Moses regularly, both before and after their detentions, and brought the older children to visit them. The evidence established that Michelle and Moses regularly played with their siblings, and that the children attended each other's birthday parties and spent holidays and other special occasions together. Michelle and Moses recognized Matthew and Marshall as their brothers and Amy as their sister.
Angie R. and others also gave testimony concerning appellants' interaction with Michelle and Moses. However, as no issue concerning the parental relationship exception was raised by either appellant, we do not discuss that testimony.
Prior to the first day of the hearing, Hector had been arrested on suspicion of being under the influence of a controlled substance and incarcerated. He was not transported for the second day of hearing as he had been transferred to immigration authorities and apparently deported.
Counsel for Michelle and Moses joined counsel for DCFS in arguing that the section 388 petition should be denied, and that the children should be freed for adoption.
The court denied the request for a sibling attachment assessment. It also denied the request to transfer custody to Rosa and Jose, pointing to the evidence that Rosa had repeatedly stated she and Jose were unwilling to take responsibility for Michelle and Moses. The court further pointed out that immediate placement would have been impossible in any event due to the expiration of Rosa's identification card and the need for a new background check. The court then turned to the section 366.26 issues and terminated parental rights. With respect to the relationship between the siblings, the court found it "a given" that Michelle and Moses knew and loved their siblings. The court stated the issue was whether Michelle and Moses's relationship with their siblings was sufficient to overcome the benefits of being in a permanent home. The court concluded that it was in the best interest of the two children to remain in the adoptive home, "a safe and stable" placement. The court found no reason to believe that the children's respective caregivers would not allow them to see their siblings. Mother and Hector appealed.
DISCUSSION
A. Sibling Exception
At the section 366.26 hearing, the juvenile court is required to terminate parental rights and order a dependent child placed for adoption if it finds by clear and convincing evidence that the child is likely to be adopted. (§ 366.26, subd. (c)(1).) An exception exists if there is "a compelling reason for determining that termination would be detrimental to the child" due to the existence of any of the circumstances specified in section 366.26, subdivision (c)(1)(B). Under subdivision (c)(1)(B)(v), termination of parental rights is not required when "[t]here 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." Where it is clear that the child is likely to be adopted, the burden is on the party seeking a different permanent plan -- generally the parent -- to demonstrate that termination of parental rights would be detrimental to the child under one of the exceptions listed in the statute. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 949; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; In re Tabitha G. (1996) 45 Cal.App.4th 1159, 1164.)
Hector contends that the court frustrated appellants' attempt to establish the section 366.26, subdivision (c)(1)(B)(v) sibling relationship exception and acted under a "prejudicial misconception of the law" when it ruled that the exception had not been established. He contends the matter must be remanded for a new section 366.26 hearing and reconsideration of whether placement with Rosa and Jose is required to maintain the sibling relationship. While we agree that the juvenile court made erroneous evidentiary rulings and expressed unwarranted antipathy to the sibling relationship exception, we conclude that in the end, it applied the correct standard and that a different outcome could not reasonably be expected under the facts and circumstances of the case.
Mother did not discuss these contentions in her separate brief, but indicated that she joined in all of Hector's arguments.
1. Background
During the course of the section 366.26 hearing, the court repeatedly expressed skepticism about appellants' ability to establish that the relationship Michelle and Moses shared with their siblings was of sufficient strength to preclude termination of parental rights and made disparaging comments about the evidence presented on this issue. For example, in discussions concerning the admissibility of photographs depicting Michelle and Moses with their siblings, the court stated "it's almost impossible [to establish the sibling exception]" and "I don't understand what the pictures are going to do." At another point, the court questioned whether there would be evidence of "the kind of relationship that defeats a termination of parental rights," as opposed to "talk[] about four children playing together." Elsewhere the court stated: "Children do not get bonded and attached to siblings." The court denied counsel's request to call Michelle for questioning about her relationship with her siblings, stating at different times during the hearing "I'm not exactly sure what [Michelle or Moses] would say other than . . . they love their sister" and "the most [Michelle or Moses] can say is I know Matthew; I know Marshall; I know Amy; I love my siblings." The court appeared particularly skeptical that Michelle and Moses's relationship with Amy could be determinative, in light of Amy's age. At one point, the court stated: "For Michelle and Moses, the fact that they have a sibling who is an infant, how that would defeat an adoption in an adoptive home is beyond me." The court also appeared to be concerned about basing a determination on the children's relationship with Amy due to the fact that Amy's case was pending in another department.
Hector erroneously states that the court sustained objections to all the photographs he wished to introduce. Contrary to Hector's contention, the court permitted him to introduce a number of photographs depicting the children celebrating birthdays, holidays and special events. The court excluded two proffered photographs: one depicting Michelle as an infant being held by an older sibling, and the other depicting Michelle and Moses with Amy when Amy was an infant. The court apparently believed that the age of the children at the time the photographs were taken rendered them entirely irrelevant. As will be discussed in greater detail, this court has held that even very young children can have a sufficiently significant relationship to their siblings to support the exception and that the older siblings' feelings toward the dependent child are not irrelevant. (In re Naomi P. (2005) 132 Cal.App.4th 808, 823.)
Hector also contends the court erred in sustaining objections to certain questions asked by his counsel pertaining to the sibling relationship and the children's joint activities. Specifically, the court sustained objections to the following questions: (1) counsel asked Mother whether the children shared experiences "deeper" than playing together; (2) counsel asked Angie R. if Michelle and Moses "share[d] common experiences" with Matthew and Marshall; (3) counsel asked Hector if Michelle and Moses thought of Amy as their sister; (4) counsel asked Rosa to describe the type of activities Michelle and Moses engaged in with the older children. The objection to the first question was properly sustained as seeking a conclusion. Although Angie R. should have been permitted to answer the second question about shared experiences, the error was harmless. She testified in response to other questions about the children's visitation with their siblings and what she observed during visitation. After the third and fourth questions were rephrased, the court permitted the witnesses to answer. Hector stated that the children referred to Amy as their sister. Rosa described the various activities the children enjoyed together, including playing, drawing, attending birthday parties and sharing holidays. Accordingly, we see no reversible error in the evidentiary rulings on these questions.
On that occasion, the court went on to state "[t]hey [children] attach to parents," and asked counsel whether he was attempting to establish "a strong relationship [with the siblings], strong enough to defeat adoption." The court may have been attempting to distinguish between the parent-child "bond" or "attachment" that must exist to establish the section 366.26, subdivision (c)(1)(B)(i) exception and the sibling "relationship" exception of subdivision (c)(1)(B)(v). If so, the comment was poorly phrased.
Amy was two at the time of the hearing. The court initially expressed skepticism about the relevance of the relationship with Matthew and Marshall due to their adoption, but ultimately permitted -- and at one point encouraged -- counsel to inquire about that relationship. (See In re Valerie A. (2006) 139 Cal.App.4th 1519, 1524 [juvenile court erred in excluding evidence of children's relationship to sibling who had previously been adopted].)
2. Analysis
Trial judges are expected to maintain control over proceedings and may properly limit the introduction of evidence and the arguments of counsel in order to expeditiously and effectively resolve the matters before them. (See Haluck v. Ricoh Electronics, Inc. (2007) 151 Cal.App.4th 994, 1006; Pen. Code, § 1044.) They should not, however, utter discourteous or disparaging remarks or comments which seem to indicate close-mindedness with respect to the issues. (See 7 Witkin, Cal. Procedure (5th ed. 2008) Trial, § 242, pp. 294-295.) Here, the court's intent may have been to warn appellants' counsel of the uphill battle facing them in attempting to establish the sibling exception, particularly because the children were young and had spent most or all of their lives in households apart from their siblings. However, the quoted comments, taken as a whole, were ill-advised, particularly those seeming to belittle the siblings' love for one another.
In this regard the court was correct. In a 2005 case involving an appeal by DCFS from a juvenile court order rejecting adoption as the permanent plan due to the strength of the sibling relationship, this court stated: "The parties have not cited, and our research has not found, any [other] published case in which a juvenile court has found applicable the sibling relationship exception . . . ." (In re Naomi P., supra, 132 Cal.App.4th at p. 823.) The author of the bill which added the section 366.26, subdivision (c)(1)(B)(v) exception wrote at the time of its enactment that use of the new exception "'will likely be rare.'" (In re L.Y.L., supra, 101 Cal.App.4th at p. 950, quoting, Assembly member Darrell Steinberg, letter to Gov. Davis re Assem. Bill No. 705 (2001-2002 Reg. Sess.) Sept. 19, 2001.)
Moreover, the court erred in precluding counsel from eliciting testimony from Michelle and in its statements that evidence pertaining to the feelings of the other siblings about the relationship was irrelevant. As this court explained in In re Naomi P., the demeanor of children when testifying is relevant and can be "powerful demonstrative evidence" of the effect that adoption may have on the dependent sibling. (In re Naomi P., supra, 132 Cal.App.4th at pp. 823-824.) Michelle was present in court. She was mature enough to express her feelings. She had never been questioned about the issue by the caseworkers. Allowing counsel a few minutes to obtain her views on her relationship with her siblings and the prospective adoption would not have caused undue disruption or delay.
Although Hector's counsel submitted a witness list which included the older siblings, he stated at the hearing that he did not intend to call them. We further held in In re Naomi P. that although the ultimate question is whether adoption would be detrimental to the dependent child, not the sibling, the testimony of a nondependent sibling is "'not irrelevant'" and could be "'indirect evidence of the effect the adoption may have on the [dependent] child.'" (In re Naomi P., supra, 132 Cal.App.4th at p. 823.)
Although we find that the court expressed inappropriate hostility to the sibling relationship exception and excluded -- or discouraged presentation of --relevant evidence, we nonetheless conclude that remand for rehearing is unnecessary. The record reflects that the court understood and applied the correct standard -- whether detriment to Michelle and Moses from loss of the sibling relationship outweighed the benefit of a prospective adoptive home. Given the legal standard, a different outcome was not reasonably possible under the facts and circumstances of the case.
Because adoption is far and away the "first choice" of the Legislature, the section 366.26, subdivision (c)(1)(B)(v) exception can be applied only "'in exceptional circumstances.'" (In re Naomi P., supra, 132 Cal.App.4th at p. 822, quoting In re Celine R. (2003) 31 Cal.4th 45, 53, italics omitted.) In enacting the provision, the Legislature was primarily concerned with "preserving long-standing relationships between siblings which serve as anchors for dependent children whose lives are in turmoil." (In re Erik P. (2002) 104 Cal.App.4th 395, 404.) Where children have "'"lost their homes, their parents, changed schools and lost contact with their friends,"'" a sibling may be "'"the only family, the last link to normalcy, that [the] children have left . . . "'" (Ibid., quoting Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Assem. Bill No. 705 (2000-2001 Reg. Sess.) as amended June 11, 2001, p. 5.) "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.) "Moreover, even 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." (Id. at pp. 952-953.) "The court must balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (Id. at p. 951.)
This was not the exceptional case in which the sibling relationship precluded termination of parental rights and adoption. Appellants presented no evidence that Michelle and Moses would suffer detriment from the loss of the sibling relationship, and there is no indication in the record or the briefs that the additional testimony and evidence counsel sought to introduce would have made up for that deficiency. Michelle and Moses's relationship with older siblings Matthew and Marshall was not an "anchor" to a more tranquil past. They had never lived together. Matthew and Marshall were placed with Rosa and Jose before Michelle and Moses were born. The children lived with Mother until Michelle was two and Moses was one, when they were removed from Mother's custody and placed with Angie R. From July 2007 to April 2009, their interaction with the older boys was limited to visitation and occasional weekend get-togethers. From April to October 2009, when Mother had custody of Michelle and Moses, they apparently had additional visitation, but were not living together. After their second detention in October 2009, Michelle and Moses's interaction with Matthew and Marshall was relegated to occasional monitored visitation in the company of Rosa.
The relationship with Amy, though more substantial, was necessarily limited. Michelle and Moses were detained before Amy was born in 2008, and they did not live with her until after Mother briefly regained custody in April 2009. After the second detention the three children were placed together in the home of Angie R. However, as the court pointed out, their interaction was necessarily limited due to their respective ages. Michelle and Moses, both toddlers, were not old enough to be Amy's caretakers and Amy, an infant, was too young to be their playmate. Moreover, Amy did not represent a link to a lost home and normalcy. The only significant periods of stability and normalcy experienced by Michelle and Moses occurred not with their biological family but in the home of their foster mother, who had custody of them for nearly two years (from July 2007 to April 2009) and again for nearly a year (from October 2009 to August 2010). As Angie R. was unwilling to provide an adoptive home, Michelle and Moses's only hope of ever attaining a home and long-term stability was with their prospective adoptive mother. Under these circumstances, any detriment from the loss of a legal tie to their siblings was necessarily outweighed by the benefit of being freed for adoption.
In reaching its conclusion that the exception did not apply, the court pointed out that that there was likely to be continued contact with the siblings. Citing In re C.B. (2010) 190 Cal.App.4th 102, Hector contends that a court cannot base its decision to terminate parental rights on the expectation that the prospective adoptive parent will voluntarily permit future contact. In In re C.B., the court held that if the parent established the section 366.26, subdivision (c)(1)(B)(i) exception, relating to the attachment between the parent and child, "the court cannot nevertheless terminate parental rights based upon an unenforceable expectation that the prospective adoptive parents will voluntarily permit future contact between the child and a biological parent, even if substantial evidence supports that expectation" because "[t]he purpose of the parent-child relationship exception is to protect the parent-child relationship when its continuation is more beneficial to the dependent child than a permanent plan of adoption and, in such case, a court cannot leave the protection of such a relationship dependent upon the hoped-for goodwill of the prospective adoptive parents." (In re C.B., supra, at pp. 128-129; accord, In re S.B. (2008) 164 Cal.App.4th 289, 300.) The rule is to the contrary, however, when the section 366.26, subdivision (c)(1)(B)(v) sibling relationship exception is the issue: evidence that the prospective adoptive parent is willing to maintain sibling contact undermines the showing required under subdivision (c)(1)(B)(v) of "substantial interference with the sibling relationship." (In re Megan S. (2002) 104 Cal.App.4th 247, 254; accord, In re S.B., supra, 164 Cal.App.4th at p. 300; In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.) Here, the evidence established that Michelle and Moses were in regular contact with their siblings. There was no evidence that the prospective adoptive mother intended to halt contact once the adoption became final and ample reason to believe she would be willing to continue it. The court properly considered that factor in concluding that termination of parental rights to free the children for adoption was subject to no exception.
In urging the court to deny Hector's 388 petition, counsel for Michelle and Moses emphasized the absence of evidence "that even if the court terminates parental rights today, that [sibling] relationship will be severed."
--------
B. Transfer of Custody
Section 361.3, subdivision (a), requires that "[i]n any case in which a child is removed from the physical custody of his or her parents . . . , preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative." Subdivision (d), added in 1993, states: "Subsequent to the [dispositional] hearing . . . , whenever a new placement of the child must be made, consideration for placement shall again be given as described in this section to relatives who have not been found to be unsuitable and who will fulfill the child's reunification or permanent plan requirements." (§ 361.3, subd. (d).) During the section 366.26 hearing, which was also the hearing on Hector's section 388 petition, the court stated with respect to Hector's request to transfer custody to Rosa and Jose that "there is absolutely no relative preference three years after a case comes in." Hector contends the court made its ruling on the request to transfer custody in disregard of subdivision (d), and that the relative placement preference was revived by the decision to transfer custody from the foster mother to the prospective adoptive mother in August 2010. Hector is mistaken both with respect to the basis for the court's ruling and his interpretation of section 361.3. Moreover, he overlooks the undisputed evidence that Rosa and Jose's request for custody was not timely, but came after the placement was made.
The length of time the case had been pending was not the sole reason the court gave for denying the request to place the children with Rosa and Jose. The court also pointed out that the grandparents had repeatedly stated they did not want custody of and responsibility for the children and that they had not been available for placement in the past, suggesting that their last-minute request for custody was less than wholehearted. The court further noted that the grandparents were not then able to take custody, because Rosa's identification card had expired and they had not undergone a background check for some time. As the court gave sound reasons for denying the request unrelated to the length of time the case had been pending, there is no basis for reversal of its order denying the request.
Moreover, the statute does not require relatives to be given preference at the permanency planning stage where, as here, the children are adoptable, the relatives gave no indication of a desire to adopt and the alternative is a prospective adoptive home. Prior to the addition of subdivision (d) to section 361.3, courts consistently held that after a case moved from the reunification stage to permanency planning, the relative placement preference ceased to exist. (See, e.g., In re Jessica Z. (1990) 225 Cal.App.3d 1089, 1098; In re Baby Girl D. (1989) 208 Cal.App.3d 1489, 1493.) Subdivision (d), by its term, requires courts to give preference to relatives whenever custody is transferred. (See In re Stephanie M. (1994) 7 Cal.4th 295, 320 [court noted that addition of subdivision (d) to section 361.3 cast doubt on holdings in In re Jessica Z. and In re Baby Girl D. and "[a]ssume[d] without deciding" that relative preference applied after reunification services were terminated].) More recently, Division One of this court held that "section 361.3 applies to placements made before the juvenile court has terminated reunification services," and that when reunification efforts have failed and the court has before it a proposed permanent plan for adoption, "the only relative with a preference is a 'relative caretaker' (if there is one seeking to adopt) and the only preference is that defined by subdivision (k) of section 366.26 (that is, a preference to be first in line in the application process.)" (In re Sarah S. (1996) 43 Cal.App.4th 274, 285, 286; see In re Lauren R. (2007) 148 Cal.App.4th 841, 855 [where child's unrelated caretaker and a close relative both sought to adopt and juvenile court gave preference to relative, Court of Appeal reversed and remanded for rehearing because "[t]here is no relative placement preference for adoption"]; Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032-1033 [relative placement preference applies when new placement becomes necessary after reunification services are terminated, but statute requires only that the relative seeking placement "'shall be the first placement to be considered and investigated'"].) As Rosa and Jose sought custody only and did not indicate a desire to adopt, they were not entitled to preference.
Finally, even if the statute required DCFS and the court to give preference to Rosa and Jose at the permanency planning stage, the evidence is undisputed that in June 2010, prior to beginning the transition to the prospective adoptive home, the caseworker contacted Rosa to give her an additional chance to express an interest in placement. Only after she declined did DCFS begin the transition to the new home, which concluded in August 2010. The statute requires consideration of a relative's request for placement "whenever a new placement of the child must be made." (§ 361.3, subd. (d).) It does not require DCFS to re-open a custody decision where the relative makes a belated request after the children have contentedly settled in a new home.
C. Sibling Attachment Study
In his section 388 petition, Hector requested that the court appoint an expert to determine the strength of the relationship between the siblings. Hector contends the court abused its discretion in failing to do so. We disagree.
Although the juvenile court "is assuredly empowered to appoint one or more factfinding expert witnesses [under Evidence Code section] 730" prior to considering termination of parental rights, "such action is a matter of discretion." (In re Jennifer J. (1992) 8 Cal.App.4th 1080, 1084.) "There is no requirement in statutory or case law that a court must secure a bonding study as a condition precedent to a termination order. . . . [A]lthough the preservation of a minor's family ties is one of the goals of the dependency laws, it is of critical importance only at the point in the proceeding when the court removes a dependent child from parental custody . . . . Family preservation ceases to be of overriding concern if a dependent child cannot be safely returned to parental custody and the juvenile court terminates reunification services. Then, the focus shifts from the parent's interest in reunification to the child's interest in permanency and stability." (In re Lorenzo C., supra, 54 Cal.App.4th at pp. 1339-1340, fn. omitted.) "Bonding studies after the termination of reunification services would frequently require delays in permanency planning. . . . The Legislature did not contemplate such last-minute efforts to put off permanent placement. [Citation.] . . . [T]he denial of a belated request for such a study is fully consistent with the scheme of the dependency statutes, and with due process." (In re Richard C. (1998) 68 Cal.App.4th 1191, 1197.)
Hector's request for a sibling attachment study under Evidence Code section 730 was part of a last-ditch effort to stall termination of parental rights despite his and Mother's unwillingness to rectify the substance abuse and other problems that for years had prevented them from adequately parenting their children and regaining custody. He provided no reason for initiating such a study at that late date, such as evidence that the children were emotionally upset. Nor did he articulate any evidence the expert could provide that was not known to lay witnesses. In the absence of any compelling reason to order the study, the court did not abuse its discretion in refusing the request.
D. Mother's ICWA Claims
ICWA was passed by Congress to cure "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." (Mississippi Band of Choctaw Indian v. Holyfield (1989) 490 U.S. 30, 32.) Under ICWA, an Indian child is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C. § 1903(4).) If the court or DCFS has reason to know that an Indian child is involved, DCFS must notify all tribes of which the child may be a member of the pending proceedings and the right to intervene. (§ 224.2, subds. (a), (b); In re Brooke C. (2005) 127 Cal.App.4th 377, 383.) A determination by an Indian tribe that a minor is either a member or eligible for membership and a biological child of a member "shall require the application of [ICWA] to the proceedings." (§ 224, subd. (c).)
1. Background
Early in the proceedings, Mother reported that her mother was registered with the Cheyenne River Sioux Tribe. Mother further reported that she was eligible to enroll, but had never done so. In August 2007, after obtaining additional information about Mother's mother and other relatives with connections to the tribe, DCFS sent a "Notice of Involuntary Child Custody Proceedings for an Indian Child" to "Cheyenne River Sioux Tribe[,] P.O. Box 747[,] Eagle Butte, South Dakota 57625." At a hearing on September 19, 2007, the court found that the tribe had been properly noticed. In October 2007, DCFS received a letter from Darlyn A. Maupin, who identified herself as the "ICWA Secretary" for the Cheyenne River Sioux Tribe. It stated that Michelle and Moses were "not enrolled or not eligible for enrollment with the Cheyenne River Sioux Tribe" and "not . . . eligible under the Cheyenne River Sioux Tribe Indian Child Welfare Act." The letter also stated: "If Mother enrolls[,] children would be eligible for enrollment with our Tribe." By order dated November 8, 1997, the court found that the matter was not governed by ICWA. In October 2009, when the children were re-detained, the caseworker reported "Mother does not wish to acknowledge Indian heritage." The court again found that ICWA did not apply.
2. Analysis
Preliminarily, Mother contends the August 2007 notice was inadequate because the address did not include the name of the tribe's designated agent. (See § 224.2, subd. (a)(2) ["Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service."].) Respondent concedes that the notice did not include the name of the registered agent for the Cheyenne River Sioux Tribe, although that information was available in the Federal Register. The fact that the tribe responded, however, renders the error in omitting the agent's name harmless. (In re J.T. (2007) 154 Cal.App.4th 986, 994.)
Mother next contends that "[i]t is unclear who authored the handwritten note" or whether it was written by someone "authorized to make enrollment determinations." The letter was in response to the notice from DCFS. It was on tribal letterhead and identified the person responding as the ICWA Secretary. The court was entitled to conclude that it came from the person authorized to make the determination.
Mother contends the evidence established that Michelle and Moses are Indian children within federal and state definitions. To be considered an Indian child, the child must be an "unmarried person who is under [the] age [of] eighteen" who is "a member of an Indian tribe" or "is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C., § 1903(4).) Michelle and Moses were not themselves members, and as neither parent was a member, the children did not meet the second definition. Mother contends that the holding of In re Jack C. (2011) 192 Cal.App.4th 967 (Jack C.), supports that Michelle and Moses were Indian children. In Jack C., the paternal grandmother was a registered Chippewa Indian. (Id. at p. 972.) In response to notice, the tribe stated that the minors were Indian children and notified the court of its intent to intervene in the dependency proceedings. (Id. at p. 973.) The juvenile court subsequently denied the tribe's petition to transfer jurisdiction after learning that the father was not a member, but had completed an application and the tribe was waiting for a certified copy of his birth certificate to complete the process. (Id. at p. 974.) The Court of Appeal concluded the children were Indian children because "notwithstanding [the father's] lack of membership in the [tribe], the record shows the [tribe] considered the children to be Indian children within the meaning of ICWA" and "[t]he decision whether a child is a member of, or eligible for membership in, the tribe is the sole province of the tribe." (Id. at pp. 979, 980; see § 224.3, subd. (e)(1) ["A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe, or testimony attesting to that status by a person authorized by the tribe to provide that determination, shall be conclusive."].) Jack C. is inapposite because here, the tribe informed DCFS and the court that Michelle and Moses were not Indian children.
Mother contends in the alternative that under the rules of court, the court had an obligation to "make active efforts" to secure tribal membership for the children. California Rules of Court, rule 5.482(c) provides: "If after [ICWA] notice had been provided . . . a tribe responds indicating that the child is eligible for membership if certain steps are followed, the court must proceed as if the child is an Indian child and direct the appropriate individual or agency to provide active efforts under rule 5.484(c) to secure tribal membership for the child." Rule 5.484(c)(2) states: "Efforts to provide services must include pursuit of any steps necessary to secure tribal membership for a child if the child is eligible for membership in a given tribe, as well as attempts to use the available resources of extended family members, the tribe, tribal and other Indian social service agencies, and individual Indian caregivers." This was not a situation where the court or DCFS could have enrolled the children by acting on their behalf. The letter from the Cheyenne River Sioux Tribe stated that the children would be eligible for membership only if Mother enrolled. Thus, the children's membership eligibility was dependent on an affirmative act by Mother, which Mother indicated she was unwilling to take. The record reflects that DCFS discussed with Mother the prospect of enrolling and that Mother insisted she did not want to acknowledge her Indian heritage. DCFS reported that information to the court. The rules do not require or authorize the court or DCFS to force a parent to become a member of a tribe against his or her will. There was no affirmative duty imposed by ICWA or the Rules of Court under these circumstances.
DISPOSITION
The orders denying the section 388 petition and terminating parental rights are affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
MANELLA, J.
We concur:
WILLHITE, Acting P. J.
SUZUKAWA, J.