In re G.D.

Filed 8/22/07 In re G.D. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Becky Dugan, Judge. Affirmed.

Jennifer Mack, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.

Ellen Bacon, under appointment by the Court of Appeal, for Minor.

1. Introduction^[1]

G.D.s father is an enrolled member of the Choctaw Nation of Oklahoma and G.D., through his father, is an Indian child eligible for enrollment in the tribe. Both mother and father have criminal records and have been incarcerated intermittently. G.D. tested positive at birth for methamphetamine exposure. Relying upon the sibling relationship exception to adoption stated in section 366.26 (In re Naomi P. (2005) 132 Cal.App.4th 808, 822-824), father appeals from an order terminating his parental rights.^[2]

We reject fathers contentions and affirm.

2. Factual and Procedural Background

G.D. was born drug-exposed in September 2005 and immediately became the subject of an original dependency petition. ( 366.26, subds. (b), (c), and (j).) Because of her drug involvement, including manufacturing, mother had previously failed to reunify with G.D.s four half-siblings, Scott, Carrisa, Sammy, and Jacob. Parental rights to those children had been terminated in December 2000 and January 2005. Father was in prison at the time of the detention and admitted to using methamphetamine daily.

In its jurisdiction/disposition report, the Department of Public Social Services (DPSS) recommended mother be denied reunification services because of her two previous failures to reunify and father be denied services because of the length of his incarceration until at least October 2006. G.D. was placed with his maternal grandparents, also the adoptive parents of his two older half-siblings, Scott and Carissa, with whom he lived from November 16, 2005, until January 25, 2006.

Genetic testing confirmed fathers paternity. After receiving notice of the dependency proceedings, the Choctaw Nation chose to intervene without assuming jurisdiction but for purposes of receiving notice and having some participation.

At the jurisdictional hearing in January 2006, father executed a waiver of his right to trial. The court denied reunification services for both parents and set a contested 366.26 hearing.

In May 2006, DPSS reported G.D. had been placed in April 2006 with prospective adoptive parents who were willing to facilitate sibling contacts. G.D. had been removed from his maternal grandparents home because it presented a safety and environmental hazard, endangering the two half-siblings already living there. Fathers cousin was unwilling to adopt G.D.

DPSS reported in July 2006 that G.D. was thriving in his placement with his prospective adoptive parents. Because G.D. is Native American, DPSS was evaluating fathers uncle for placement. The uncles wife, however, was opposed to adoption. For that reason, DPSS continued to recommend adoption by the prospective adoptive parents.

In the meantime, the maternal grandparents, who are not Native American, asked to be appointed as de facto parents. DPSS opposed their request based on their limited relationship with G.D. and their chronic problems with maintaining their home.

On September 11, 2006, the court finally received an Indian Expert Witness Declaration, recommending that G.D. be enrolled in the tribe after termination of parental rights and agreeing with the recommendation that he be adopted by his present caretakers.

At the contested selection and implementation hearing on September 11, father argued the court should consider the presence of G.D.s two half-siblings, ages 10 and eight, in the maternal grandparents home. The adoptive mother stated she would allow sibling contact. In the alternative, father also argued in favor of placement with an Indian family. The court noted the Choctaw tribe as a sovereign nation has an absolute right to determine placement and concurred with the recommendation for adoption by the prospective parents.

The court made findings that it is likely the child will be adopted and it is in his best interests. G.D. is an Indian child but active efforts to prevent the breakup of an Indian family were unsuccessful. The court terminated parental rights, finding no exception applicable. The court further ordered G.D. to be enrolled as a member of the Choctaw tribe. Finally, the court denied the maternal grandparents motion for de facto parent status as moot but referred the maternal grandparents, the adoptive parents, and the parents to mediation for a voluntary post-adoption contract.

Father appealed.

3. Discussion

One exception to the preference for adoption as a permanent plan is when termination of parental rights and adoption would cause substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption. ( 366.26, subd. (c)(1)(E).)

We review the trial courts determination based on whether there is substantial evidence, that is, evidence which is reasonable, credible, and of solid valuesuch that a reasonable trier of fact could find [that termination of parental rights is appropriate based on clear and convincing evidence]. [Citations.] (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re L. Y. L. (2002) 101 Cal.App.4th 942, 953.)

To show substantial interference with a childs sibling relationship the parent must show the existence of a significant sibling relationship, the severance of which would be detrimental to the child. (In re L. Y. L., supra, 101 Cal.App.4th at p. 952.) Here, by the time of the section 366.26 hearing, G.D. had lived with his maternal grandparents and half-siblings for about two months when he was a few months old. Afterwards he was in a foster placement and then with his adoptive parents for about five months.

Although there had been ongoing visitation with the maternal grandparents and the half-siblings and they seem to be attached to their baby brother, there was no substantial evidence G.D. would suffer detriment if the relationship ended. As discussed by the California Supreme Court: The siblings relationship with the child is not irrelevant. Certainly, evidence of the siblings relationship with the child and, if the sibling is articulate, perhaps of the siblings views of that relationship, might be relevant as indirect evidence of the effect the adoption may have on the adoptive child. A nonadoptive siblings emotional resistance towards the proposed adoption may also implicate the interests of the adoptive child. In an appropriate case, the court should carefully consider all evidence regarding the sibling relationship as it relates to possible detriment to the adoptive child. But the ultimate question is whether adoption would be detrimental to the adoptive child, not someone else. This conclusion does not mean that the court must totally disregard the interests of the sibling or the significance of the sibling relationship when it orders adoption. When appropriate, the court can encourage the adoptive parents to agree to visits among the siblings although, as the court recognized in this case, it cannot require them to do so. [Emphasis added.] (In re Celine R. (2003) 31 Cal.4th 45, 55.)

We conclude father has not sustained his burden of proof that termination of his parental rights to G.D. would substantially interfere with G.D.s relationship with his half-siblings, particularly since the adoptive parents were willing to facilitate an ongoing relationship with monthly visits.

Moreover, the court also weighs the benefit to the child of continuing the sibling relationship against the benefit to the child adoption would provide. To paraphrase In re L. Y. L., supra, 101 Cal.App.4th at page 953, if parental rights are terminated here, G.D. gains a permanent home through adoption. If parental rights are not terminated, he loses the permanent home his prospective adoptive parents are ready to provide for him. Valuing G.D.s continuing relationship with his older half-siblings over adoption could deprive him of the ability to belong to a family, which is not in his best interests. The extent of the benefits of continuing G.D.s half-sibling relationships is unclear on the record in this case. Substantial evidence supports the courts conclusion that the benefits of adoption outweighed the benefits of the continuing half-sibling relationships, even if it be assumed that termination of parental rights would result in a substantial interference with the sibling relationship.

4. Disposition

The trial court properly determined the sibling relationship exception to adoption should not operate to deprive G.D. of the permanent adoptive home he has now enjoyed for more than a year in favor of his relationship as an infant with two half-siblings. We affirm the judgment.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/Hollenhorst

J.

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^[1] All statutory references are to the Welfare and Institutions Code unless stated otherwise.

^[2] Mother is not a party to this appeal, having never filed a notice of appeal. The appeal of the maternal grandparents was dismissed for failure to file an opening brief.