In re T.B.
Filed 11/6/13 In re T.B. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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
THIRD APPELLATE
DISTRICT
(Butte)
----
In re T.B. et al.,
Persons Coming Under the Juvenile Court Law.
BUTTE COUNTY DEPARTMENT
OF EMPLOYMENT AND SOCIAL SERVICES,
Plaintiff and Respondent,
v.
P.P. et al.,
Defendants and Appellants.
C072587
(Super. Ct. Nos.
J35301, J36046)
P.P., the mother
of the minors T.B. and P.H., and T.B.’s father J.B, appeal from the juvenile
court’s orders terminating parental rights
and denying mother’s petition for modification. (Welf. & Inst. Code, §§ 395, 388, 366.26;
unless otherwise stated, statutory references that follow are to the Welfare
and Institutions Code.) Mother contends
the juvenile court erred in not finding the sibling relationship exception to
adoption. Father contends there was a
failure to comply with the notice requirements of the Indian Child Welfare Act
(ICWA). (25 U.S.C. § 1901 et seq.) Father and mother join each others
arguments. We affirm the orders of the
juvenile court
Facts and Proceedings
In May
2010, three-year-old T.B. was placed in protective custody after mother left
her with people who did not know T.B. or her parents. Mother admitted abusing the drug Dilaudid and
testing positive for methamphetamine. Later
that month, the Butte County Department of Employment and Social Services (the Department)
filed a dependency petition (§ 300) alleging T.B. was at substantial risk
of harm due to domestic violence between mother and her boyfriend, mother’s
drug use, mother leaving T.B. with unrelated adults, and father’s incarceration.
The minor
was detained at a May 2010 detention
hearing.
The
juvenile court inquired into the minor’s possible Indian heritage at the
detention hearing. Mother told the
juvenile court she had no Indian heritage, and did not know if father had any. The paternal grandmother told the juvenile
court the paternal grandfather “claims†he has Indian heritage, “but I’m not
sure.†He lived in Alaska,
and the paternal grandmother did not know what type of Indian ancestry he
claimed to have. Asked if she could
provide contact information for the paternal grandfather, the paternal
grandmother replied, “I can try. It will
be through my daughter, but I can.â€
In a June
2010 disposition report, the Department said mother and father moved from Alaska
to California in 2009. They had two children, T.B., and six-year-old B.B. Father moved back to Alaska
with B.B. Father was subsequently incarcerated,
and B.B. was placed with relatives in Alaska
who would not return him to mother.
The juvenile
court sustained the petition in May 2010 and ordered reunification services for
mother in June 2010.
The Department
sent ICWA notices to the Secretary of the Interior, the Bureau of Indian
Affairs, and the three Cherokee tribes. The
notice included information about the parents and paternal grandmother, but no
information regarding the paternal grandfather. In June 2010, the Cherokee Nation sent a
letter stating T.B. was not eligible for membership in the tribe. The letter listed mother, father, T.B., and
the paternal grandmother as the persons through whom potential tribal
membership was traced. In July 2010, the
Eastern Band of Cherokee Indians sent a letter stating T.B. was not eligible
for membership based on the information provided by the Department.
The
juvenile court found the ICWA did not apply to the minor’s case at an August
2010 hearing.
The
Department filed a petition for modification (§ 388) in October 2010,
requesting T.B.’s return to mother with family maintenance services after
mother completed an inpatient substance abuse program and actively participated
in her services. The juvenile court
granted the petition in November 2010.
T.B.’s half
sister P.H. was born in August 2010. T.B.
lived with mother, mother’s boyfriend R.H. and P.H. Her brother B.B. moved in with the family in
December 2010.
The
Department filed a supplemental petition (§ 387) on behalf of T.B. in
September 2011 alleging mother failed to arrange for adequate shelter for T.B.
after telling the Department she would be incarcerated for one to six months. According to the detention report, mother did
not fully participate in services, failed a drug test three separate times, and
tested positive for opiates and oxycotin. Father remained in Alaska,
where he had pending felony charges. T.B.
was detained by the juvenile court later that month.
The
Department also filed a dependency petition (§ 300) for P.H. alleging similar
grounds as in T.B.’s section 387 petition and her father’s incarceration. The juvenile court detained P.H. a few days
later. After P.H.’s father denied having
Indian heritage, the juvenile court found the ICWA did not apply to her.
The
juvenile court sustained the petitions in October 2011.
A December 2011
disposition report related T.B.’s wish to be placed with her brother B.B. and
her paternal grandmother. She
consistently asked when she was going to get to live with them. T.B. and P.H. were placed in the same foster
home and share a strong bond with each other. The Department recommended denying
Father’s
first appearance before the juvenile court was by telephone in February 2012. Regarding his possible Indian ancestry, father
told the juvenile court: “Only thing I do
know is that I have a little bit of Indian, like Cherokee Indian, a quarter on
my dad’s side. They are going to send me
what they call a background, like a family history brochure thing so I can fill
it out and call up my family, have them help me fill it out and send it back to
the courts.â€
Asked to
clarify his statement, father replied, “Alls I know, like I said, is I know I
am half Italian, and I have German, and a quarter Indian.†Father said the Cherokee was from his father’s
side of the family. Asked if anyone is a
member of a tribe, father said, “I don’t think so. I don’t think that would fall under, do you
know what I mean? I am not positive on
that, but I don’t think so. I do believe
I have done a questionnaire on that once already, and determined it wouldn’t
fall. I wouldn’t go under that status of
the native thing, you know, of the Indian tribe thing.â€
Based on
the information before it, the juvenile court reconfirmed its prior ruling that
the ICWA did not apply.
Following a
contested dispositional hearing, the juvenile court denied services and set a
section 366.26 hearing.
In June
2012, mother filed section 388 petitions to return T.B. and P.H. with family
maintenance services.
The June
2012 section 366.26 report said T.B. had six placements and P.H. four since
during the dependency. They were in the
same foster home since February 2012. They
were thriving there, formed a strong bond with the family, and the foster
parents were “very committed†to adopting them. The family gave “great thought†over the
possibility of contact with family members, including B.B., after adoption. They were definitely open to post-adoption
contact.
Mother
maintained visitation and brought B.B to many of the visits. However, B.B. did not go on as many visits in
the last two months before the report.
The report
also noted the juvenile court sustained a nondetained petition with family
maintenance as to B.B. in March 2012.
B.B. was later detained and placed in foster care. He is not a party to this appeal.
An
adoptability assessment was filed by the California Department of Social
Services (CDSS). T.B. and P.H. had
strong attachments to the potential adoptive family. Having been separated for only six days, T.B.
and P.H. enjoyed “a significant, healthy, mutually beneficial sibling
relationship†and should remain together.
The
reporter observed a visit between T.B., P.H., B.B., and mother. The observer saw no “direct interactionsâ€
between T.B., P.H., and B.B. The
children greeted each other when directed to do so. P.H. competed for mother’s attention and the
snacks she provided. T.B. was quiet and
appeared withdrawn. T.B. and P.H.
reportedly do not ask about B.B., and did not show distress when he did not
attend visits.
The
reporter concluded the possible interference with the sibling relationship
caused by terminating parental rights would not be detrimental when compared to
the benefit of the permanence gained by adoption. CDSS accordingly recommended terminating
parental rights.
Mother
filed a bonding study written by psychologist Dr. Claire Fields. Dr. Fields spent over three-and-one-half hours
observing T.B., P.H., and B.B. interact each other, their grandparents, mother,
and three social workers. She found the
children “seemingly happy to be together.†T.B. and B.B. “seem to read one another’s
emotional state.†As an example, “while
engrossed in a coloring project in opposite ends of the room, when [they]
looked up simultaneously caught each other’s eyes and smiled before going back
to work on their project.†Looking at
the social worker’s services logs, Dr. Fields found T.B. and B.B. spent a
majority of their visits together and were happy to see each other. Both children were also very protective of
their little sister P.H.
Dr. Fields
concluded that the three children had “a strong sibling bond.†Separation of the children would be
detrimental, especially for T.B. and B.B.
Dr. Fields testified
about her bonding study at the contested hearing. She reiterated her conclusion that there was a
strong bond between the three children. Although
T.B. and P.H. lived in the same foster home, living apart from B.B. was a tremendous
strain on the sibling relationship as B.B. and T.B. would feel safer if they
lived together. Frequent contact was
needed to maintain the sibling bond. It
was not unusual that detriment from the separation was not yet apparent, as the
trauma from the loss normally unfolds in subsequent relationships the child has
in elementary school and high school.
Mother
testified that B.B. and T.B. wanted to go with each other when visits are over.
When she arrived without B.B., T.B.
always asked where was her brother.
Father absolutely
believed B.B. and T.B. were bonded to each other. They always looked out for and were concerned
for each other.
Filippo
Pizzuto was the section 366.26 worker in T.B.’s and P.H.’s case. He thought the girls had a connection with
B.B. The prospective adoptive parents
were willing to support continued contact with B.B., but nothing was written
out or formally agreed upon.
The
adoptions social worker testified that T.B. does not ask the foster parents for
contact with B.B. or ask for him.
The
juvenile court denied mother’s section 388 request and terminated parental
rights.
Discussion
I
ICWA Notice
Father
contends there was a failure to comply with the notice and inquiry provisions
of the ICWA.
Congress
passed the ICWA “to promote the stability and security of Indian tribes and
families by establishing minimum standards for removal of Indian children from
their families and placement of such children ‘in foster or adoptive homes
which will reflect the unique values of Indian culture . . . .’
†(In
re Levi U. (2000) 78 Cal.App.4th 191, 195; 25 U.S.C. § 1902.)
A social
worker has “an affirmative and continuing duty to inquire whether a child [in a
section 300 proceeding] is or may be an Indian child . . . .â€
(§ 224.3, subd. (a).) Furthermore, if the social worker “has reason
to know that an Indian child is involved, the social worker . . . is
required to make further inquiry regarding the possible Indian status of the
child, and to do so as soon as practicable, by interviewing the parents, Indian
custodian, and extended family members to gather the information†required to
be provided in the ICWA notice. (§ 224.3,
subd. (c).)
The ICWA
also includes a provision for notice to the child’s tribe in any involuntary
state court proceeding in which “the court knows or has reason to know that an
Indian child is involved . . . .†(25 U.S.C. § 1912(a).) The Indian status of a child need not be
certain or conclusive to trigger the ICWA’s notice requirements. (In re
Desiree F. (2000) 83 Cal.App.4th 460, 471.) Nonetheless, some information provided by a
parent can be “too vague and speculative to give the juvenile court any reason
to believe the minors might be Indian children.†(In re O.K. (2003) 106 Cal.App.4th
152, 157.) In those cases, notice is not
triggered. (Ibid.)
Father’s claim
is based on the failure to include any information on the paternal grandfather
in the notices sent to the relevant tribes and agencies. He notes the paternal grandmother said T.B.
might have possible Indian heritage through the paternal grandfather. Father asserts the juvenile court should have
asked the paternal grandmother for father’s name or birth date, and the failure
of the juvenile court or the Department to ask this question of the paternal
grandmother fatally compromised the investigation into T.B.’s possible Indian
heritage, thus rendering the notices inadequate.
The ICWA
does not mandate a particular form of investigating a child’s possible Indian
heritage. The Department and the
juvenile court were not required to “cast about†for family history
information. (In re Levi U., supra,78 Cal.App.4th at p. 199.) Instead, the ICWA requires a reasonable
investigation into a child’s possible Indian heritage. Here, the paternal grandmother told the court
she would provide additional information about the paternal grandfather and the
claimed Indian heritage through him if she could. There is no evidence she made good on her
promise. Father likewise told the
juvenile court he would provide additional information about the Indian
heritage claimed through the paternal grandfather, but, like his mother, did
not do so. If a relative refuses to give
additional information, the duty to inquire ends. (In re
K.M. (2009) 172 Cal.App.4th 115, 119.)
The
Department and the juvenile court could reasonably take the father and paternal
grandmother at their word when they promised to give more information about the
paternal grandfather. The ICWA does not
require an agency or juvenile court to ask additional questions in anticipation
of a relative’s breach of a promise to provide additional information. Since the notices contained all the
information given to the Department, the ICWA’s duties of inquiry and notice
were satisfied.
II
Mother
contends the juvenile court erred in declining to apply the sibling exception
to adoption.
At the
selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent
plans for a minor child. . . . The
permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] If the court finds the child is adoptable, it
circumstances under which it would be detrimental to the child. [Citation.]†(In re Ronell
A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which
permit the court to find a “compelling reason for determining that termination [of
parental rights] would be detrimental to the child.†(§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the
burden of establishing the existence of any circumstances which constitute an
exception to termination of parental rights. (In re
Cristella C. (1992) 6 Cal.App.4th 1363.)
Termination
of parental rights is detrimental to the child 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.†(§ 366.26, subd. (c)(1)(B)(v).)
There is a “heavy
burden†on the parent opposing adoption under the sibling exception. (In re
Daniel H. (2002) 99 Cal.App.4th 804, 813.) “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.†(
942, 952, fn. omitted.)
The authors
of the legislation adding the sibling exception envisioned that its
applicability would “ ‘likely be rare.’ [Citation.]â€
(In
re L.Y.L., supra, 101 Cal.App.4th at p. 950.) This language has been interpreted to mean “that
the child’s relationship with his or her siblings would rarely be sufficiently
strong to outweigh the benefits of adoption.†(Ibid.)
The
evidence before the juvenile court did not establish the sibling exception. While the expert said separation from their
brother would be detrimental to the minors, she did not recommend against
adoption. In fact, asked if T.B. and
P.H. should be removed from the prospective adoptive family to be reunited with
B.B., the expert testified: “If the
children cannot go back to their biological family and if the home is a good
home and they are attached to the family, then it would probably be detrimental
to move them to another placement.†The
expert admitted the children were currently showing no harm from separation, and
her finding of detriment was based on the minors’ future harm from being
separated from their brother. Asked if
the idea that T.B. suffered loss from separation from B.B. was speculation, the
expert admitted, “Yes. Based on years
and years of research data.†Asked as a
follow up, “[f]or which you need more research, more time, and more data in
this particular case,†the expert replied, “[y]es.â€
The minors
showed no immediate harm during their extended separation from their brother. The speculative evidence of long-term
detriment does not come close to satisfying the heavy burden of establishing
the sibling exception to adoption.
Disposition
The
juvenile court’s orders are affirmed.
HULL ,
J.
We concur:
BLEASE , Acting P. J.
MURRAY , J.
