Opinion
D073051
05-07-2018
In re D.R., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. V.S., Defendant and Appellant.
Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. EJ03698B) APPEAL from orders of the Superior Court of San Diego County, Marian F. Gaston, Judge. Affirmed. Elena S. Min, under appointment by the Court of Appeal, for Defendant and Appellant. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County Counsel, and Lisa Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
V.S. (Mother) appeals the denial of her petition for modification under Welfare and Institutions Code section 388 and the termination of parental rights over her daughter, D.R., under section 366.26. She argues the juvenile court erred by denying her request for reunification services and by terminating her parental rights. She also contends the court and the San Diego County Health and Human Services Agency (Agency) failed to comply with the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) To the contrary, however, we conclude that substantial evidence supports the court's findings and that the trial judge did not abuse her discretion. We likewise find no error with respect to the ICWA. Accordingly, we affirm.
Further unspecified statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
We provide a detailed recitation of the facts because they are relevant to our legal analysis. A. Prior Dependency Proceedings
Mother has a significant history of drug abuse and legal struggles. She had three children: A.A., son of Father A., born in 2010; and K.R. and D.R., daughters of Father R., born in 2013 and 2014, respectively. A.A. went to live with his aunt in Ohio in April 2013. In July 2013, shortly after her birth, K.R. tested positive for amphetamines. She was declared a dependent of the juvenile court, after which the court placed her in the care of her paternal grandmother, K.M. Although reunification services were offered to Mother with regard to K.R., those services were subsequently terminated when she failed to make progress in her reunification efforts. K.R. was placed permanently with the grandmother in a legal guardianship.
Father R. is not a party to this appeal.
D.R. was born in 2014 while Mother was incarcerated. There were no complications in D.R.'s birth, and Mother tested negative for drugs. She admitted, however, that she used drugs during the pregnancy. Dependency proceedings were initiated, but D.R. remained in Mother's care while she participated in substance abuse treatment. That initial dependency case was closed when both parents successfully completed family maintenance services.
Throughout her life, D.R. has primarily been in her Mother's care, but she also spent time in K.M.'s care and previously resided with K.M.
In June 2016, Mother regained custody of A.A. But in August, she broke her arm and subsequently relapsed into drug use. B. Detention and Disposition
In October, A.A. reported that he acted as a lookout and his little sister slept in the backseat of their car while Mother and Father R. burglarized cars. On October 4, A.A.'s school called Mother because A.A. had an earache. Mother arrived at school two hours later, apparently intoxicated, with D.R. in the car. Officers arrested Mother for being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)) and willful harm or injury to a child for driving under the influence of drugs with a child in the car (Pen. Code, § 273a, subd. (a)). Officers also found drug paraphernalia (a hypodermic needle) and burglary tools (a lock picking set and a glass punch tool) in the car. Mother denied she was under the influence of drugs, but later admitted to using methamphetamines the prior weekend and stated she was "coming down."
A.A. and D.R. were removed from Mother's custody. The detention hearing was conducted by the same judge who previously presided over K.R.'s dependency case, and the court relied on "the previous dependency case" to find that Father R. was D.R.'s presumed father. The court also found that ICWA did not apply. It ordered Mother to have "liberal" supervised visits with the children. A.A. was placed with his paternal cousin; D.R. was placed with K.M.
In December, at the hearing to adjudicate dependency, the Agency requested that the juvenile court take judicial notice of certain orders in K.R.'s case. The court indicated on the record that it would "get the file" of K.R.'s proceedings and "[take] judicial notice of the findings and orders" in that case. None of the parties objected. The court found D.R. was a dependent under section 300, subdivision (b) and denied Mother family reunification services under section 361.5, subdivision (b), because she had not reunified with another child (K.R.) and had not resolved the issues that led to that child's removal (drug abuse and criminal behavior). C. The 10-Month Period Before the Permanency Hearing
Mother began participating in dependency drug court the next day. Later that month, she began inpatient substance abuse treatment at the Family Resource Center. In February 2017, however, after missing curfew one night, she was discharged from that program. She admitted she "experienced a relapse" and tested positive for methamphetamine in early March. Mother missed two scheduled visits with D.R. during this time, but she promptly enrolled in another inpatient substance abuse program. Since joining that program, she has received positive feedback about her progress.
In March, the Agency recommended terminating Mother's parental rights as to D.R. under section 366.26 and implementing a permanent plan of adoption. It suggested that D.R. be placed for adoption with K.M., indicating that K.M. had been D.R.'s caregiver since October 2016 and during that time had demonstrated both her commitment to meeting all of D.R.'s needs and her ability to meet those needs. Having supervised D.R. and K.M.'s interactions, the Agency reported that D.R. "show[ed] comfort in [K.M.'s] care, and turn[ed] to K.M. for emotional support."
In support of the recommendation to place D.R. for adoption, the Agency noted that Mother had previously participated in reunification services for D.R. which had been deemed successful; nonetheless, Mother had re-exposed D.R. to the risks associated with drug use and criminal activity. The Agency acknowledged that D.R. and her mother had "a foundation of a relationship" and described the supervised visits between D.R. and Mother positively, noting that "[D.R.] is happy to see [Mother], and she enjoys cuddling with [Mother]. [Mother] plays with age appropriate toys with [D.R.], and is good at providing guidance and supervision during play." Yet the Agency concluded that D.R.'s "need for stability far outweighs any detriment should the parent[-]child relationship be severed." The Agency further concluded that D.R.'s sibling relationship with A.A., with whom she had resided for only four months, did not rise to the level "that it would be detrimental should parental rights be terminated." D. Mother's Section 388 Petition
In June, Mother petitioned for modification under section 388, requesting reunification services. In support, she argued that she fully participated in her treatment program, she continued to have negative drug tests, she planned to attend aftercare for six months after graduating from her treatment program, and she had developed an excellent support system that would continue to support her after graduation. She contended reunification would allow expanded visitation that would benefit D.R.
At the evidentiary hearing on her petition for modification, Mother testified that she had successfully completed an intensive, 118-day inpatient substance abuse treatment program and was currently participating in a six-month aftercare program. She had moved into a sober living facility where she attended group meetings and participated in random drug testing. She had graduated successfully from the first phase of dependency drug court and had moved into the second phase. She recognized her triggers for drug abuse and had developed tools to address and manage those triggers in a positive way. She had established a support system and remained employed. She served as a mentor to another woman in recovery and had maintained her sobriety for six and a half months.
Mother explained that her sobriety now was different from her previous two and a half year period of sobriety that ended in relapse: "What's different is that I'm doing this for myself. That's the only way it's going to work. I have a larger support network. I have a stronger foundation that, you know, I gained through [C.R.A.S.H.], and just a more positive outlook[,] and I'm more in the program than I was before." Mother acknowledged that her substance abuse was an ongoing issue.
Two Agency social workers who had supervised visits between Mother and D.R. offered testimony. Both described consistent, supervised visits between Mother and D.R. that were "fun," "appropriate," and "enjoyable." One social worker characterized the relationship between D.R. and Mother as "fun" and "friendly," but indicated that D.R. typically separated easily from Mother. She noted that D.R.'s "excitement about returning to K.M.'s care was typically greater than her excitement about going to visit Mother. The social worker labeled D.R.'s relationship with K.M. as a parent-child relationship, stating that D.R. looked to K.M. "for her needs [and] for reassurance . . . ." She portrayed D.R.'s relationship with her brother A.A. as loving, but observed that she was closer to her sister K.R., terming that relationship "very strong." She further opined that it was in D.R.'s best interests to remain in her current placement. The social worker concluded that D.R.'s primary need was stability.
The other social worker testified that, although D.R. was generally happy to see Mother, she was also happy and excited to return to K.M. On one occasion, however, D.R. cried when she was separated from Mother because she was upset to leave her.
After the evidentiary hearing, the juvenile court "with a heavy heart" denied Mother's petition for modification, noting, "This is not a case about whether or not a mother loves her child[;] it is, rather, a case about the power of addiction." The court recognized that Mother had been sober since March and commended Mother for her efforts at sobriety. However, the court noted that Mother had participated in services before; even so, Mother had previously relapsed from a prior period of sobriety, and had relapsed again during the pendency of these proceedings. The court found that Mother failed to demonstrate a substantial change of circumstances because completion of a drug treatment program and a brief period of sobriety did not demonstrate the level of changed circumstances required by the law. The court further found that, even if Mother had met her burden to establish changed circumstances, providing Mother with reunification services was not in D.R.'s best interests because she had been living with K.M. and K.R. for nearly a year, and D.R. enjoyed "a warm, loving bond with both her sister and her caregiver." The juvenile court also noted that, during the relapse that precipitated these proceedings, Mother exposed D.R. not just to the risks associated with illegal drugs, but to criminal activity involving even more substantial risks. The court concluded that the benefits from D.R.'s warm relationship with Mother did not outweigh the trauma of removing D.R. from K.M.'s care, and thus Mother had not established that reunification services should be offered. E. The Permanency Hearing
The parties proceeded to a hearing under section 366.26 (.26 hearing) to select and implement a permanent plan for D.R. The court indicated that for purposes of the section 366.26 adjudication it would consider all the evidence and testimony that had been offered in the modification hearing. The parties also presented additional evidence. An Agency social worker testified that D.R. was excited to see Mother during their visits, gave her hugs and kisses, and told her she loved and missed her. She further explained that she recommended D.R.'s adoption by K.M, noting that "[a]doption provides more stability," especially important for a child "of such young age," and it was "in [D.R.'s] best interest to have the most permanent plan for stability, which is adoption." The social worker noted that all of Mother's visits had been supervised, and she felt that Mother was not able to meet D.R.'s primary needs.
K.M. testified that D.R. had been in her care since November 2016. She testified that she wanted to adopt D.R. and K.R., and if she did so, it was her intention that the girls would maintain a relationship with their brother A.A. and also with their parents, so long as the parents remained "sober" and "appropriate."
As discussed, K.R. was previously placed in legal guardianship with K.M. When K.M. expressed her desire to adopt both D.R. and K.R., separate proceedings were initiated to determine K.R.'s potential permanent placement for adoption. Those proceedings are not at issue in this appeal.
After the .26 hearing, the court found, based on clear and convincing evidence, that terminating Mother's parental rights over D.R. and placing her for permanent placement in adoption was in D.R.'s best interests. The court recommended adoption by K.M.
The court declined to apply the parent-child exceptions under section 366.26, finding that, although D.R. and Mother had a loving relationship, "it simply does not rise to the level of the parent[-]child bond that's contemplated by the [L]egislature as an exception under [section] 366.26." The court also declined to apply the sibling bond exception, finding that, although D.R. and A.A.'s relationship was "very playful and loving," it was "not the type of relationship that rises to the level that it should derail an adoption." "If anything," the court noted, D.R. "is closest to the sister that she currently lives with. And so, if we do examine the sibling relationships, then, if anything, they weigh more heavily toward[] adoption" with K.M. This appeal followed.
Mother filed separate appeals of the order denying her section 388 petition (In re D.R., filed Oct. 5, 2017, D072919) and the section 366.26 order terminating her parental rights (In re D.R., filed Nov. 1, 2017, D073051). We appointed separate counsel in each appeal. After appointed counsel in No. D072919 submitted a letter brief indicating her position that there were no arguable issues, we dismissed that appeal without making any substantive determinations on the merits. In the current appeal, Mother raised issues related to both orders. The Agency took the position that the appeal is timely as to both orders and addressed the merits of all issues raised. Neither party discussed the prior appeal. We note that the notice of appeal filed in this case is timely as to both orders. We construe the notice broadly to apply to both orders (Luz v. Lopes (1960) 55 Cal.2d 54, 59-60) and address all substantive issues raised by Mother in this appeal.
DISCUSSION
A. The Juvenile Court Did Not Abuse Its Discretion When It Denied Mother's Request for Reunification Services.
Mother contends the order denying her section 388 petition for modification must be reversed because the court erred in finding both that Mother did not establish a change of circumstances and that reunification services would not be in D.R.'s best interests. Under section 388, subdivision (a)(1), a parent may petition to change, modify, or set aside a prior order "upon grounds of change of circumstance or new evidence." "The petitioning party has the burden of showing, by a preponderance of the evidence, that (1) there is a change of circumstances or new evidence; and (2) the proposed change in the court's previous order is in the child's best interests." (In re Carl R. (2005) 128 Cal.App.4th 1051, 1071.)
The change in circumstances must be substantial. (In re Heraclio (1996) 42 Cal.App.4th 569, 577.) "It is not enough for a parent to show just a genuine change of circumstances under the statute. The parent must show that the undoing of the prior order would be in the best interests of the child." (In re Kimberly F. (1997) 56 Cal.App.4th 519, 529 (Kimberly F.).) A parent's "relatively last-minute (albeit genuine) changes" do not warrant modification. (Id. at p. 530.) This is because, "[a]fter the termination of reunification services, the parents' interest in the care, custody and companionship of the child are no longer paramount. Rather, at this point 'the focus shifts to the needs of the child for permanency and stability.' " (In re Stephanie M. (1994) 7 Cal.4th 295, 317 (Stephanie M.).)
A modification petition that "alleges merely changing circumstances and would mean delaying the selection of a permanent home for a child to see if a parent, who has repeatedly failed to reunify with the child, might be able to reunify at some future point, does not promote stability for the child or the child's best interests." (In re Casey D. (1999) 70 Cal.App.4th 38, 47.) "Childhood does not wait for the parent to become adequate." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.)
We review the juvenile court's decision to deny a section 388 petition for abuse of discretion. (Stephanie M., supra, 7 Cal.4th at p. 318.) When two or more inferences can reasonably be deduced from the facts, we have no authority to substitute our decision for that of the juvenile court. (Id. at p. 319.)
We find no abuse of discretion here. To the contrary, the record makes clear that the court weighed all the evidence presented by the parties and assessed this evidence under the appropriate legal framework, concluding quite reasonably that Mother had not met her burden to demonstrate sufficiently changed circumstances or that offering reunification services would promote D.R.'s best interests.
With respect to the juvenile court's finding that she had not demonstrated changed circumstances, Mother argues that she presented evidence demonstrating significant progress in her recovery efforts, including maintaining sobriety for over six months, developing significant insight into her addiction and past mistakes, and utilizing the tools she had learned in treatment to effect change in her life. For example, Mother points out she voluntarily attended a group meeting during the lunch recess of the hearing on her section 388 petition to help her cope with a stressful day without turning to substances. She argues that her case is thus distinguishable from the cases relied on by the juvenile court in denying her section 388 petition: In re Marcelo B. (2012) 209 Cal.App.4th 635 (Marcelo B.), In re Cliffton B. (2000) 81 Cal.App.4th 415 (Cliffton B.), and In re Ernesto R. (2014) 230 Cal.App.4th 219 (Ernesto R.), and this establishes an abuse of discretion. We disagree.
Evidence in the proceedings below established that Mother was making progress in her substance abuse treatment, bringing the case beyond that established by the father in Marcelo B. whose "belated choice to return to treatment [was] no guarantee that he [would] achieve or maintain the sobriety required for him to be a parent to Marcelo." (Marcelo B., supra, 209 Cal.App.4th at p. 642, italics added.) The juvenile court here was not concerned with Mother's achieving sobriety, but with her maintaining it in the long term, and with avoiding the substance abuse and criminal behavior that precipitated these proceedings.
Cliffton B. and Ernesto R. support the denial of Mother's 388 petition. In Cliffton B., the court opined that, in the context of a long history of substance abuse that included periods of sobriety and periods of relapse, father's seven months of sobriety, "while commendable, was nothing new." (Cliffton B., supra, 81 Cal.App.4th at p. 423.) Similarly, in Ernesto R., the court recognized that "chronic drug abuse presents a lifelong challenge and may put children of such drug abusers in danger." (Ernesto R., supra, 230 Cal.App.4th at p. 225.) In that case, mother proffered evidence that she never missed a supervised visit with her son; she provided food, diapers, clothing, and learning toys during visits and transported herself to and from visits; she interacted affectionately with her son, who recognized her and was happy to see her at visits; she had maintained sobriety, completed multiple parenting programs and was enrolled in drug treatment programs; she had a sponsor, attended meetings, and submitted to drug testing; and she was seeking employment and had made arrangements for her son to stay with her in her current housing. (Id. at p. 222.) The appellate court opined that mother's "recent sobriety reflects 'changing,' not changed circumstances" because she "has a long history of drug relapses, is in the early stages of recovery, and is still addressing a chronic substance abuse problem." (Id. at p. 223.)
Similarly, here, Mother had a long history of substance abuse, including periods of sobriety—like the one in which she successfully concluded services with D.R.—and periods of relapse—like the one that led to the detention of A.A. and D.R. in October 2016, and another one during the current proceedings in February 2017. We agree with the juvenile court that, while Mother appears to be "on a good track," the facts of this case do not amount to the substantial change of circumstances that is required under the law.
Even if we were to assume, for the sake of argument, that Mother established sufficiently changed circumstances, still she failed to show that reunification services would promote D.R.'s best interests. Mother claims the juvenile court "ignored" evidence of Mother's positive life changes and the strong bond between Mother and D.R., giving "undue weight" to her attachment to the paternal grandmother, which Mother asserts the court cautioned against in In re Kimberly F., supra, 56 Cal.App.4th at pp.529-530. To the contrary, however, the juvenile court did not ignore the evidence favoring Mother. Rather, the judge appropriately acknowledged and applauded Mother's commitment to her recovery, recognized the love between Mother and D.R., and noted the positive nature of the supervised visits. She carefully considered the three factors identified in Kimberly F.: the seriousness of the reason for dependency in the first place; the strength of the child's bond with her parent, and, correlatively, the strength of the child's bond with her caretaker; and the degree to which the problem leading to the dependency may be ameliorated. (Id. at pp. 530-531.) Weighing the evidence under these factors, the court found that here the factors did not favor granting Mother's request for reunification services.
The record reflects the court's thoughtful balancing of the relevant competing considerations. When, as here, a modification petition is filed on the eve of a permanency placement hearing, the focus has already shifted from maintaining the parent-child relationship to the child's needs for permanency and stability. (In re Stephanie M., supra, 7 Cal.4th at p. 317.) "A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child." (Ibid.) Mother's evidence here did not establish that D.R.'s need for permanency and stability would be advanced by an order for reunification services. Indeed, such an order at this stage in D.R.'s proceedings might very well hinder the stability of D.R.'s placement with K.M., which the court recognized was incredibly positive. D.R. had been placed with K.M. for nearly a year, during which time K.M. had consistently fulfilled D.R.'s emotional and material needs. Moreover, in K.M.'s care D.R. enjoyed a positive bond not just with her caregiver, but also with her sister K.R. Mother failed to establish that D.R.'s best interests in permanency and stability would be furthered by the proposed modification. On this record, we find no abuse of discretion. B. The Juvenile Court Did Not Err in Terminating Mother's Parental Rights and Placing D.R. for Adoption.
Mother claims the juvenile court erred in terminating her parental rights over D.R. because either the parental relationship or sibling bond exception should apply. We conclude there was no error.
Under section 366.26, when a parent has failed to reunify with an adoptable child, the juvenile court must terminate parental rights and select adoption as the permanent plan for the child. The juvenile court may choose a different permanent plan only if it finds a "compelling reason" to apply one of several exceptions, including that terminating parental rights would be detrimental to the child because "[t]he parent[ has] maintained regular visitation and contact with the child and the child would benefit from continuing the relationship" (§ 366.26, subd. (c)(1)(B)(i)) (the parental relationship exception) or because "[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" (§ 366.26, subd. (c)(1)(B)(v)) (the sibling bond exception).
1. The Juvenile Court Properly Declined to Apply the Parental Relationship Exception.
To trigger application of the parental relationship exception, the parent must prove that "severing the natural parent-child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed. [Citations.] A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Angel B. (2002) 97 Cal.App.4th 454, 466.) Evidence that a parent has maintained " 'frequent and loving contact' is not sufficient to establish the existence of a beneficial parental relationship." (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316.) Likewise, demonstrating a "warm and affectionate relationship" with the child is insufficient. (Marcelo B., supra, 209 Cal.App.4th at p. 644; accord In re Derek W. (1999) 73 Cal.App.4th 823, 827 [affirming an order terminating parental rights where the parental relationship was "pleasant and emotionally significant" to the child, but bore "no resemblance to the sort of consistent, daily nurturing that marks a parental relationship"].) "We apply the substantial evidence standard of review to the factual issue of the existence of a beneficial parental relationship, and the abuse of discretion standard to the determination of whether there is a compelling reason for finding that termination would be detrimental to the child." (In re Anthony B. (2015) 239 Cal.App.4th 389, 395.)
Mother claims that the evidence in the present case brings it within In re S.B. (2008) 164 Cal.App.4th 289 (S.B.), In re Amber M. (2002) 103 Cal.App.4th 681 (Amber M.), and In re Brandon C. (1999) 71 Cal.App.4th 1530 (Brandon C.), cases in which courts properly determined the parental relationship outweighed the benefits of adoption. We are not persuaded.
In S.B., the juvenile court recognized the father and daughter shared "an emotionally significant relationship" and daughter would benefit from continuing her relationship with father, but nonetheless terminated father's parental rights based in part on caregiver's expressed willingness to allow continued visitation and a finding that, while terminating the father-daughter relationship would be detrimental, it would eventually be ameliorated by time and by daughter's strong relationship with her caregiver. (S.B., supra, 164 Cal.App.4th at pp. 296, 299-300.) This court reversed, noting that terminating father's rights would foreclose any legal right to visit, and a parent should not "be deprived of a legal relationship with his or her child on the basis of an unenforceable promise of future visitation by the child's prospective adoptive parents." (Id. at p. 300.) Having found that the daughter would benefit from continuing her significant relationship with her father, the juvenile court erred in finding the parental relationship exception did not apply. (Id. at pp. 300-301.)
In In re Jason J. (2009) 175 Cal.App.4th 922, this court cautioned: "The S.B. opinion must be viewed in light of its particular facts. It does not, of course, stand for the proposition that a termination order is subject to reversal whenever there is 'some measure of benefit' in continued contact between parent and child." (Id. at p. 937.)
In Amber M., this court reversed an order terminating parental rights and remanded for further proceedings, noting that "[t]he common theme running through the evidence" presented at the .26 hearing "from the bonding study psychologist, the therapists, and the [court-appointed special advocate] is a beneficial parental relationship that clearly outweighs the benefit of adoption." (Amber M., supra, 103 Cal.App.4th at p. 690.)
In Brandon C., the appellate court affirmed an order in which the juvenile court applied the parental bond exception to place the children in caregiver's legal guardianship, rather than making them available for adoption. (Brandon C., supra, 71 Cal.App.4th at p. 1538.) Evidence showed that the mother visited her children weekly for more than two years, completed a drug rehabilitation program, participated in random drug testing with negative results for at least nine months, and maintained stability in housing and employment for at least as long. (Id. at pp. 1535-1537.) There was a close bond between the mother and children and testimony showed that continued contact would be beneficial to the children. (Id. at p. 1537.) We concluded the evidence of a beneficial relationship was sufficient to support the juvenile court's decision to order guardianship. (Id. at p. 1538.)
The common theme among these three cases is that the parent-child bond in each case was determined to be so substantial that severing it would cause the child great harm. The facts here do not mandate the same conclusion. The juvenile court here recognized that Mother and D.R. had a loving relationship and apparently determined that Mother had demonstrated the existence of a beneficial relationship. Nonetheless, after weighing the evidence, the court concluded that the nature of Mother and D.R.'s bond was not so significant as to preclude adoption, which would offer D.R. the stability and permanence that promoted her best interests. Indeed, the evidence supports the juvenile court's determination that while Mother and D.R. had a warm and loving relationship, it was K.M., not Mother, who filled the parental role in D.R.'s life. "A child who has been adjudged a dependent of the juvenile court should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree, but that does not meet the child's need for a parent." (In re Angel B., supra, 97 Cal.App.4th at p. 466.) The juvenile court did not abuse its discretion in declining to apply the parental relationship exception.
2. The Juvenile Court Properly Declined to Apply the Sibling Bond Exception.
Mother contends the juvenile court erred in declining to apply the sibling bond exception based on D.R.'s relationship with A.A. The sibling bond exception will preclude the termination of parental rights if two elements are met. First, terminating parental rights must substantially interfere with the sibling relationship. (§ 366.26, subd. (c)(1)(B)(v).) This is determined by evaluating the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences, or have existing close and strong bonds. (Ibid.; see In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952.) Second, the child's best interests in continuing that sibling relationship must outweigh the benefit the child would receive through the permanency of adoption. (Ibid.) When determining applicability of the sibling bond exception, the juvenile court may permissibly consider a caregiver's assurances of continued sibling visits. (In re D.O. (2016) 247 Cal.App.4th 166, 175; see also S.B., supra, 164 Cal.App.4th at p. 300 ["Unlike the parent-child relationship, sibling relationships enjoy legal recognition after termination of parental rights."].) Our standard of review under this exception is the same as under the parental bond exception: "we apply the substantial evidence standard to the juvenile court's underlying factual determinations, and the abuse of discretion standard to the court's weighing of competing interests." (In re D.O., at p. 174.)
While the court here was presented with evidence that D.R. and A.A. had a loving and sweet relationship, D.R. was closer to K.R. and had "many more shared experiences" with her. Evidence also showed that, during her lifetime, D.R. had lived with A.A. only for four months. K.M. testified she intended to maintain contact among all three siblings. In light of the evidence, the juvenile court did not abuse its discretion in finding that although the relationship between D.R. and A.A. was loving, the nature of the relationship did not "rise[] to the level that it should derail an adoption." We find no error on this record. C. Mother Has Not Established Prejudicial Error under the ICWA.
Without alleging that she knows or even suspects D.R. might have Native American heritage, Mother argues reversal is required under the ICWA because the juvenile court and the Agency failed to make the proper inquiry of Father R. about possible Native American heritage. In response, the Agency acknowledges that inquiry of Father R. was not made in these proceedings but contends that the duty of inquiry was met because it was made in prior proceedings involving D.R.'s full sister, K.R. We agree with the Agency and find no prejudicial error here.
"The ICWA, enacted by Congress in 1978, is intended to 'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.' [Citation.] 'The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.' " (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174 (Karla C.).) The ICWA provides that "where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).)
Under section 224.3, subdivision (a), the juvenile court and the Agency "have an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child in all dependency proceedings." "If the court fails to ask a parent about his or her Indian heritage, a limited reversal of an order or judgment and remand for proper inquiry and any required notice may be necessary. [Citation.] Reversal is not warranted, however, when the court's noncompliance with the inquiry requirement constitutes harmless error. [Citation.]" (In re A.B. (2008) 164 Cal.App.4th 832, 839.)
Mother's position that there was no inquiry into Father R.'s possible Native American heritage is not entirely consistent with the record. True, Father R. did not file a Parental Notification of Indian Status form (form ICWA-020) in the present proceeding, as required by California Rules of Court, rule 5.481(a)(2), even though he appeared at proceedings and was represented by appointed counsel. However, the juvenile court took judicial notice of sister K.R.'s prior dependency proceedings. (See Evid. Code, § 452, subd. (d).) And in those proceedings, upon inquiry from the Agency in July 2013, both Mother and Father R. denied any knowledge of Native American heritage, and the court found the ICWA did not apply. Based on this record, the juvenile court reasonably concluded that the ICWA did not apply in D.R.'s proceedings.
Father R. indicated his paternal grandfather was "Azteca," a tribe of Mexican descent that is not a federally recognized tribe under 82 Federal Register 4915 (Jan. 17, 2017). --------
Mother relies on Karla C. to support her position that the deficiency in the record here requires reversal. In Karla C., father indicated he may have Blackfeet Indian heritage, triggering the ICWA requirement to send notices of the proceedings. (Karla C., supra, 113 Cal.App.4th at p. 172.) The Agency claimed to have sent notices to the appropriate entities; however, copies of the purported notices were not included in the record. (Id. at pp. 172-173.) When the tribe failed to intervene, the court found the ICWA did not apply, declared the child a dependent, and removed her from her mother's custody. (Karla C., at p. 173.) On appeal this court reversed, holding that the failure of the required notices to appear in the record was a fatal deficiency; without the notices, it was impossible to evaluate their sufficiency and to assess compliance with the ICWA. (Karla C., at p. 178.)
Mother's reliance on Karla C. conflates the issues of ICWA notice and ICWA inquiry. Karla C.'s holding that required ICWA notices must appear in the record is inapposite here, where there is no basis to conclude that ICWA notice was required. Mother attested below that she did not believe she or Father R. had Native American heritage, and she does not now assert that she knows or has reason to believe D.R. might have Native American heritage. In the absence of facts to support even a suspicion of Native American heritage, ICWA notice is not required. Consequently, unlike in Karla C., the failure of this record to contain ICWA notices does not constitute error.
Alternatively, Mother argues that under In re Robert A. (2007) 147 Cal.App.4th 982, 989-990 (Robert A.), reliance on an ICWA finding in a sibling's case without submission of the supporting document in the case at issue constitutes reversible error. In Robert A., father indicated at the outset of the dependency proceeding that he had Cherokee heritage, triggering ICWA's notice requirements. The Agency conceded it failed to provide the required notice to the tribe, but contended the error should be deemed harmless because, ultimately, it had provided notice in a sibling case. We concluded the error was not harmless, noting that the siblings' proceedings occurred before different judicial officers in different courts, and father's notice of appeal in the instant case predated the ICWA notices in the sibling's case. We opined, "ICWA notices in separate dependency cases are not fungible evidence—even when the separate cases involve half-siblings who share the same parent with Indian heritage." (Robert A., at p. 990.)
Mother's reliance of Robert A. continues to conflate the issues of ICWA notice and ICWA inquiry, but even if Robert A.'s rationale regarding ICWA notice was equally applicable to ICWA inquiry, still Robert A. is distinguishable from this case in one significant way. There, attempting to overcome the admitted failure to send the necessary notices under the ICWA, the Agency proffered ICWA notices from a sibling's case that had been sent after the contested determinations were made in Robert's case. That showing could not cure the admitted error of failing to send the required notices prior to making the contested determinations. In contrast, here, the juvenile court relied on prior findings and orders to make the preliminary determination that the ICWA did not apply and ICWA notice was unnecessary.
Mother does not dispute that D.R. and K.R. are sisters or that, upon Agency inquiry in K.R.'s case, both parents denied Native American heritage. Mother does not claim that the ICWA was inapplicable in K.R.'s case. Neither Mother nor Father R. challenged the ICWA determination in D.R.'s proceedings below. In light of the juvenile court's judicial notice of K.R.'s case, and in the absence of an allegation that there is reason to believe D.R. has Native American heritage, we do not find prejudicial error on this record.
DISPOSITION
The orders are affirmed.
DATO, J. WE CONCUR: NARES, Acting P. J. IRION, J.