In re G.F.

Filed 6/25/07 In re G.F. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Shasta)

Patrick F., father of the minors, appeals from orders of the juvenile court terminating his parental rights. (Welf. & Inst. Code, 366.26, 395 [further undesignated statutory references are to this code].) Appellant raises various issues relating to the termination of his parental rights and also contends the notices sent pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) were not adequate. Agreeing only with the latter contention, we reverse for proper notice in accordance with the ICWA.

FACTS

The minors, 11-year-old G.F. and 9-year-old J.W. were removed from parental custody in May 2005, because both parents had substance abuse problems and a history of domestic violence. The parents were separated and appellant had not had contact with the minors for years.

At the detention hearing, the mother informed the court that her father was one-sixteenth Cherokee from the Eastern Band of Cherokee Indians. Notice of the proceedings was sent to the Bureau of Indian Affairs (BIA) and to the Eastern Band of Cherokee Indians. Although the maternal grandmothers name was known to the social worker, the notice contained only the mothers married name and appellants name. Subsequent investigation for the disposition report indicated that the maternal grandfather had died some time ago. No information on the maternal grandfather, through whom Indian heritage was claimed, was included in the notices sent to the tribe or the BIA. The social worker informed the court that the background information provided by the mother had been sent to the tribe, which had responded that the minors were not eligible for membership in the tribe.

At the jurisdiction/disposition hearing in July 2005, the court found the ICWA did not apply. The court also ordered reunification services for the parents who ultimately failed to reunify with the minors. However, appellant did visit the minors when he was able to and began to develop a relationship with them after his long absence.

During the second six months of services, appellant stopped taking his medication, was arrested on a parole violation and served several months in prison. After his release, he again was able to visit the minors occasionally.

The minors both showed the negative effects of parental neglect and abuse, expressed in behavioral problems and difficulty in school. J.W. required medication to address his hyperactivity, depression and reaction to trauma. The minors were placed in separate homes shortly after removal then briefly reunited in a foster home. J.W. wanted to be with G.F., but, after problems arose between the siblings, they were again placed separately. Both were doing well in placement and J.W.s behavior improved.

By the 12-month review report in June 2006, the minors had again been placed together and appeared happy, although both had problems in school. The minors wanted to remain in their current placement. Both minors had symptoms of post-traumatic stress disorder and were in therapy. Part of J.W.s problems was due to the perceived lack of investigation by police of the sexual abuse perpetrated on him by a maternal uncle. Within a few months, the minors were again placed in separate homes. G.F. wanted to remain in her current placement and did not wish to be placed with appellant. J.W. was interested in a relationship with appellant but was cautious about committing to living with appellant due to his concerns about appellants behavior during an extended visit. At the 12-month review hearing, the court terminated services and set a hearing pursuant to section 366.26, to select a permanent plan for the minors.

The report for the section 366.26 hearing recommended a permanent plan of adoption for the minors, who remained placed in separate homes. The report stated that appellant called the minors regularly and visited when he was able to. The minors hoped to be able to continue contact with appellant after adoption. The minors were in counseling to work on their relationship which was characterized by G.F. sadistically victimizing J.W. to the point that it was detrimental to them to leave them together unsupervised. Although the minors had shared significant common experiences, the social worker believed it could be years before the sibling relationship was beneficial to either of them. J.W. was deeply affected by the physical and sexual abuse perpetrated on him, resulting in significant issues with trust and anger control, and was relieved that the perpetrator had been arrested. J.W. had multiple placements, was not currently in an adoptive placement and none was identified for him. However, he wanted a real family more than anything. G.F. was eager to be adopted by her current caretakers. The adoptions social worker assessed the minors as adoptable. G.F. was considered highly adoptable both because her current caretakers wanted to adopt her and because others were interested in a child with her characteristics. J.W. was a healthy, attractive child who strongly expressed that he wanted to be adopted and have a permanent home. A preliminary search located 20 potential matches for him and the adoptions social worker was confident an adoptive home would be found.

At the section 366.26 hearing in December 2006, appellant testified about his visitation with the minors and acknowledged the relationship was not close. However, he believed there was an emotional parent-child connection and that the minors recognized him as their father. The court adopted the social workers recommendation, terminating parental rights and selecting adoption as a permanent plan.

DISCUSSION

I

Appellant contends substantial evidence does not support the finding J.W. is adoptable because he had severe emotional and behavioral problems and no prospective adoptive home had been identified.

When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which is reasonable, credible and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (Ibid.)

Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The existence or suitability of the prospective adoptive family, if any, is not relevant to this issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844; 366.26.) [T]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time. (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)

The minor J.W. is older than many children found to be adoptable and suffers from psychological problems as a result of the abuse and neglect he suffered while in parental custody. However, these problems are not so severe that J.W. requires a higher level of placement than normal foster care. J.W. is healthy, attractive, developmentally on track and wants to be adopted. He is in therapy and is beginning to stabilize now that the perpetrator of his sexual abuse has been arrested and he is free of his sisters victimization. Additionally, in the opinion of the adoptions social worker J.W. is adoptable and a preliminary search produced 20 potential matches.

It is true that the adoptions social workers opinion alone might not support the finding the minor was likely to be adopted in a reasonable time. (See In re Brian P., supra, 99 Cal.App.4th at p. 624; In re Kristin W. (1990) 222 Cal.App.3d 234, 253.) Here, however, there were additional facts about the minor supporting the courts finding. These facts in conjunction with the adoption social workers opinion constitute substantial evidence to support the finding.

Appellant argues that the social workers opinion on J.W.s likelihood of adoption was merely a lay opinion because there is no foundation that the social worker had any expertise in the area. We disagree. The report for the section 366.26 hearing clearly states that an adoption social worker, separate from the case worker, interviewed the minors and assessed their adoptability and placement alternatives. The court could infer that the adoption worker had special expertise in the field. Appellant did not challenge either the adoption social workers qualifications or the basis of her opinion in the juvenile court and has forfeited the issue on appeal. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502; In re Christopher B. (1996) 43 Cal.App.4th 551, 558.)

II

Appellant argues the evidence established exceptions to the preference for adoption and the juvenile court abused its discretion in failing to apply them here.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.] [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances

under which it would be detrimental to the child. (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).) 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, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code,  500.) Two exceptions are at issue in this case.

One of the circumstances in which termination of parental rights would be detrimental to the minor is: The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Welf. & Inst. Code, 366.26, subd.(c)(1)(A).) The benefit to the child must promote the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th, 567, 575.) Even frequent and loving contact is not sufficient to establish this benefit absent a significant positive emotional attachment between parent and child. (In re Teneka W. (1995) 37 Cal.App.4th 721, 728-729; In re Beatrice M. (1994) 29 Cal.App.4th 1411, 1418-1419; In re Brian B. (1991) 2 Cal.App.4th 904, 924.)

Appellant has failed to meet this burden. Although appellant visited the minors as much as possible after re-entering the minors lives following years of absence and maintained contact by telephone, he acknowledged in testimony the relationship was not strong. The fact that the minors expressed an interest in continued contact with appellant after adoption does not support an inference either that there was a substantial positive emotional attachment or that the minors would suffer great harm if the contact was again severed.

A second circumstance in which termination of parental rights would be detrimental is when [t]here would be 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).)

The court must consider the interests of the adoptive child, not the sibling, in determining whether termination would be detrimental to the adoptive child. (In re Celine R. (2003) 31 Cal.4th 45, 49-50; In re Daniel H. (2002) 99 Cal.App.4th 804, 812.) 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. (2002) 101 Cal.App.4th 942, 952, fn. omitted.)

Again appellant has failed to meet his burden. The evidence showed that the minors did have a sibling relationship but, due to the trauma each suffered as a result of the shared experiences of parental neglect and abuse, the relationship was toxic. The minors repeatedly had to be separated despite their desire to live together and at the time of the hearing could not be allowed to visit each other without close supervision due to their negative interaction. The minors were in counseling to deal with these issues but the sibling relationship was not currently beneficial and might not be for many years.

Because appellant did not establish the elements of either exception to adoption, the juvenile court did not abuse its discretion in terminating parental rights.

III

Appellant contends the notice requirements of the ICWA were not met because the Department failed to include known and readily available information in the notices. We agree.

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the Department have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.664(d).) If, after the petition is filed, the court knows or has reason to know that an Indian child is involved, notice of the pending proceeding and the right to intervene must be sent to the tribe or the BIA if the tribal affiliation is not known. (25 U.S.C. 1912; Cal. Rules of Court, rule 5.664(f).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472; In re Kahlen W. (1991) 233 Cal.App.3d. 1414, 1424.)

Federal regulations and the federal guidelines on Indian child custody proceedings both specify the contents of the notice to be sent to the tribe in order to inform the tribe of the proceedings and assist the tribe in determining if the child is a member or eligible for membership. (25 C.F.R. 23.11(a), (d), (e); see also Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67588 (Nov. 26, 1979).) If known, the agency should provide name and date of birth of the child; the tribe in which membership is claimed; the names, birthdates, and places of birth and death, current addresses and tribal enrollment numbers of the parents, grandparents and great grandparents as this information will assist the tribe in making its determination of whether the child is eligible for membership and whether to intervene.^[1] (Ibid.; In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.)

A mandatory form (JV-135) has been developed with these guidelines in mind with ample space for names, addresses and other relevant information to assist the tribe in the search of its records. Such a form was used in this case, but insofar as we can determine from the record, little of the known information was provided. It is true that after the initial notice was sent, the social worker reported that the background information provided by the mother was sent to the tribe. The record does not disclose what this information might be or whether it filled the gaps which are apparent from a cursory review of the JV-135 filed with the juvenile court. Indeed, the record suggests that it did not since the tribes response used appellants last name when referring to both minors rather than J.W.s last name which is the same as that of the maternal grandmother and is presumably the mothers maiden name.

In In re D. T., supra, 113 Cal.App.4th at pages 1454-1455), reversal was required because the social worker had information which should have been provided to tribes and was not. Here, as in In re D. T., the Department provided scant information to assist [] the tribe[] in making a determination as to whether the minors were Indian children. (Id. at p. 1454.) Also as in In re D. T., the social workers affirmative duty to inquire whether the minors might be Indian children mandated, at a minimum, that [there be] some inquiry regarding the additional information required to be included in the ICWA notice. (Id. at p. 1455.)

The social worker was in contact with the maternal grandmother, had her name and could reasonably have inquired about the name of the maternal grandfather. The social worker also knew the mothers maiden name and the fact that the maternal grandfather had died. All of this information would have assisted the tribe and none of it was included in the notice.

Respondent contends that appellant has waived the adequacy of the notice by failing to raise the issue in the juvenile court. It is well settled that parental inaction does not waive a claim that notice to the tribes was lacking or inadequate. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739.)

IV

Appellant contends minors counsel had an actual conflict of interest and provided inadequate representation to the minors because J.W. was not likely to be adopted and repeatedly expressed a desire to live with his sister.

This question was recently addressed by the Supreme Court in In re Celine R., supra, 31 Cal.4th at page 50. The court held that the court may appoint a single attorney to represent all of the siblings unless, at the time of appointment, an actual conflict of interest exists among them or it appears from the circumstances specific to the case that it is reasonably likely an actual conflict will arise. After the initial appointment, the court must relieve counsel from the joint representation when, but only when, an actual conflict of interest rises. (Ibid.) Further, error in not appointing separate counsel for a child or relieving conflicted counsel requires reversal only if it is reasonably probable the outcome would have been different but for the error. (Id. at pp. 59-60.)

There was no actual conflict when counsel for the minors was appointed. The inquiry then is whether an actual conflict arose at the time of the section 366.26 hearing. We conclude it did not.

As discussed above, substantial evidence supports the finding that J.W. was likely to be adopted and no exception to the preference for adoption was established. Further, both minors expressed a desire to be adopted and to achieve the stability of a permanent home. Neither minor wanted to return to appellants care although both were open to continued contact with him. Continued contact between the minors, regardless of their wishes, was detrimental unless closely monitored and subject to therapeutic intervention. No conflict of interest appears.

Even had there been a conflict of interest, it is not reasonably probable the outcome of the section 366.26 hearing would have differed had separate counsel been appointed to represent each minor. Thus, any error is harmless.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of compliance with the ICWA notice provisions. The juvenile court is directed to order the Shasta County Department of Social Services to comply promptly with the notice provisions of the ICWA by making the appropriate inquiry and sending notices containing the information known to, or developed by, the Department after such inquiry. Thereafter, if there is no response or if the tribe or the BIA determines the minor is not an Indian child, the orders shall be reinstated. However, if the tribe or the BIA determines the minor is an Indian child or if information is presented to the juvenile court that affirmatively indicates the minor is an Indian child as defined by the ICWA, and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new section 366.26 hearing in conformance with all provisions of the ICWA.

MORRISON , J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line attorney.

^[1] We note that the substance of these guidelines and the provisions of the ICWA have recently been adopted by the Legislature in sections 224 to 224.6.