In re Isaac O.

In re Isaac O.

Filed 7/30/08 In re Isaac O. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

In re ISAAC O. et al., Persons Coming Under the Juvenile Court Law.
SAN BERNARDINO COUNTY DEPARTMENT OF CHILDREN'S SERVICES, Plaintiff and Respondent, v. RAMON O., Defendant and Appellant.	E044320 (Super.Ct.Nos. J194284 & J194285) OPINION

APPEAL from the Superior Court of San Bernardino County. A. Rex Victor, Judge. Affirmed.

Roni Keller, under appointment by the Court of Appeal, for Defendant and Appellant.

Ruth E. Stringer, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.

Konrad S. Lee, under appointment by the Court of Appeal, for Minors.

Appellant Ramon O., Sr. (Father) is the father of Isaac O., now six years old, and Ramon O., Jr., now eight years old (children). Father appeals from the juvenile courts judgment, entered after holding a hearing under Welfare and Institutions Code section 366.26,^[1]terminating his parental rights and selecting adoption with the unrelated foster parents as the childrens permanent plan. Father argues: 1) the juvenile court erred when it failed to apply the sibling relationship exception, now found at section 366.26, subdivision (c)(1)(B)(v),^[2]to the presumption for adoption; and 2) the juvenile court and Department of Childrens Services (DCS) did not fulfill their duty of inquiry under the Indian Child Welfare Act (ICWA).

As discussed below, we conclude that the juvenile court correctly declined to apply the sibling exception and that, even if the juvenile court did not fulfill its inquiry duties under ICWA, Father did not make the required showing of prejudice. For these reasons, we affirm the juvenile courts orders.

Facts and Procedure

A. Detention

Isaac and Ramon, then ages two and four, were taken into protective custody in

April 2004 after Mother was arrested for possessing narcotics for sale. The children, their six-month-old half brother Carlos, and their home were found in filthy condition. The social worker described the situation as follows: The home was filthy, roach-infested . . . dirt and grime were caked along the floor, the kitchen, and the 3 youngest children. The childrens 8-year-old half brother Jose and their 9-year-old half sister Andrea were detained at school. Their oldest half brothers, 12-year-old Angel and 14-year-old Javier, were staying with a paternal aunt, and remained in her care throughout these proceedings.^[3] Isaac and Ramon had a total of five half siblings at that time.

The section 300 petitions named Father as Isaacs and Ramons father, and indicated he was unable to provide for them because he had been incarcerated for robbery since 2001, with an anticipated release date of 2034. The childrens mother stated that Isaac was born while Father was incarcerated, and so Father had never met him. Ramon was less than two years old when Father was incarcerated.

Isaac and Ramon were initially placed together in a separate foster home from their half siblings, but DCS was seeking a placement where they could be together with their two next older half siblings, Jose and Andrea. The infant Carlos was placed with the paternal aunt who was caring for the two oldest, Angel and Javier. Mother visited daily with Angel, Javier and Carlos at the paternal aunts home. Mother visited weekly together with Isaac, Ramon, Jose and Andrea at the foster agency office.

B. Jurisdiction and Disposition

The jurisdiction and disposition hearing set for April 28, 2004, was continued to June 2 to have Father transported from prison. Both parents were present on June 2, but Mother set the hearing contested and it was continued to July 22, with a pretrial conference on July 9. During the June 2 hearing, Fathers counsel inquired of him on the record in open court: Do you know if you have any Indian heritage, tribes membership in your family? Father replied No.

At the July 9, 2004, pretrial conference, Mother was present but Father could not be transported. Mother decided not to contest. The juvenile court found the children to be dependent children and ordered Mother to participate in services. Mothers counsel indicated that he had spoken with the maternal grandmother, who had expressed a desire to provide a home for Andrea and Jose; however, no mention was made of Isaac or Ramon. Counsel also mentioned that the paternal aunt was interested in having the four children still in foster care placed with her, if and when she had room for them. The paternal aunt was working on getting a larger home. It appears from the conversation that Mother was pregnant. The court found Father was an alleged father, not entitled to services. The six-month review hearing was scheduled for January 10, 2005.

C. Six-Month Review

The six-month review hearing was held on January 10, 2005. The court ordered the children maintained in their current placements and that reunification services to mother be continued.

In the status review report, the social worker noted that the children and siblings regularly visited together and with Mother for one hour each week and that the children looked forward to the visits. The juvenile court instructed the social worker to liberalize Mothers visits if Mother continued to work on her case plan. It is unclear from the report whether Isaac and Ramon had been placed together in a foster home with their next older siblings, Jose and Andrea. The maternal grandmother expressed a desire to have Andrea placed with her, but that was not possible as long as Mother resided in the maternal grandmothers home Mother had given birth to a baby girl.

D. Twelve-Month Review, Permanency Planning, Section 388 Petition

The 12-month status review hearing was scheduled for July 7, 2005. Mother had been incarcerated since May for possession of a controlled substance. Mother asked for a contested hearing and mediation. The mediation was held on July 19. At the pretrial conference on August 5, the parties reported that they had agreed to extend services to the 18-month mark, which would be early October. Mother was at that time still incarcerated. Andrea had been moved to the maternal grandmothers home. Mothers counsel had filed a section 388 petition seeking to have the three children in nonrelative foster care (Isaac, Ramon and Jose) placed with relatives when relative placement was available.

The 18-month review hearing was held on October 3, 2005. Mother was still incarcerated and it appeared she might be deported. The court terminated reunification services to Mother, selected long-term foster care as the permanent plan, and set a permanency planning review hearing for April 3, 2006. The parties reported that the section 388 petition was still pending while the social worker attempted to find relative placements for Isaac, Ramon and Jose.

On January 6, 2006, the juvenile court held a hearing on the section 388 petition. Mother was still incarcerated. Mother had proposed a nonrelative for placement as a nonrelated-extended family member, but at that time she did not have a relationship with the children. Counsel for DCS suggested the nonrelative start having visits with the children or obtain a foster care license. Mothers counsel agreed to continue the section 388 petition hearing until the April 3, 2006 permanency plan review hearing. The court authorized the social worker to place Isaac, Ramon and Jose if a proper placement was found.

At the April 3, 2006, permanency plan review hearing, Mothers counsel agreed to take the section 388 petition off calendar because the social worker had been doing her best to work with the family regarding relative placements. Its not quite come to pass yet. The court continued the children in their current placements and set the next review hearing for October 3, 2006. On April 20, 2006, Jose was placed with the maternal grandmother.

At the permanency plan review hearing held on October 17, 2006, the court again continued the children in their current placements and scheduled the next hearing for April 17, 2007.

At the permanency plan review hearing held on May 16, 2007, the juvenile court set a section 366.26 hearing for September 17, 2007, at which it would consider terminating parental rights and selecting adoption as the permanent plan. Visitation was reduced to once per month.

E. Section 366.26 Selection and Implementation

The section 366.26 hearing set for September 17, 2007 was continued to October 17, so Father and the two oldest siblings, Javier and Angel, could contest the DCS recommendation that Isaac and Ramon be adopted by their foster parents. Mother had been deported to Mexico.

Father was present, in custody, at the October 17, 2007, section 366.26 hearing. Javier, who was then 18 years old, testified that when Isaac and Ramon lived at home he would help Mother with them. He testified that all of the brothers had gotten along, and that Ramon had been closest to him and to Jose. Javier described the sibling visits as taking place every other week at a fast food restaurant, and stated that all of the siblings would attend, as well as the maternal grandmother, paternal aunt, and the foster parent. He said that Isaac and Ramon appeared to enjoy the visits, but he commented on the frequency of the visits Since we dont really see each other, our bond, it cant grow greater because we only see each other every other week for one hour. We dont got that much time to spend with each other. Javier testified that at the visits the children would hug each other, sit together and eat together. At the end of the visits Isaac and Ramon would have a difficult time leaving and that they would look back and keep saying goodbye.

Javier summed up his objection to the adoption as follows, Im objecting because I would like my brothers to live with us and not get adopted by the family they are living with right now. I believe that we still have a lot of memories to live and that we deserve to see each other as much as possible. Its not our fault that our parents made the wrong choices. []  . . .  []  . . .  I want my brothers to grow up with me so we can know each other better, make up for the years that we havent been living together . . . . Javier was speaking on behalf of all his siblings about their objection to having Isaac and Ramon adopted outside the family.

The maternal grandmother testified that Jose and Andrea were now placed with her and that she had missed very few visits with Isaac and Ramon. She also testified that, until visitation was reduced, presumably at the May 16, 2007, hearing at which the section 366.26 hearing was set, Isaac and Ramon were for several months able to see their siblings every Saturday at her home from 8:00 a.m. to 6:00 p.m. She stated that at the last visit at her home, Isaac and Ramon hid so that she had to search for them to take them back to foster care. She also testified after the twice-monthly visits at the fast food restaurant, Isaac and Ramon would wave and say goodbye even after getting into the car to leave. She stated that both Isaac and Ramon had asked her why they could not come to her house to visit any more. She denied that the visits at her home had stopped because the children had told the social worker that they were visiting with their mother at the grandmothers home.

When asked why Isaac and Ramon had not been placed with her, the maternal grandmother responded that her home lacked two bedrooms, but that everything is ready for two bedrooms and a bathroom to be added onto her home. The foundation was in and had been inspected. Her husband was a contractor and had begun work on the addition in his spare time about a month and a half previously. She had not previously told the social worker about the addition. Grandmother stated that she had requested placement of Andrea, Jose, Isaac and Ramon from the beginning, and denied that she had ever stated she just wanted Andrea.

The paternal aunt testified that Isaac and Ramon immediately approach their siblings during visits and that Isaac runs up to Javier. She stated that the siblings all sit together, talk, and share food.

After argument from counsel, the juvenile court found that the benefit to Isaac and Ramon from being adopted by their current foster parents outweighed the benefit to them from continuing the sibling relationship. The court terminated parental rights and selected adoption, with preference to the current foster parents, as their permanent plan. This appeal followed.

Discussion

A. Sibling Relationship Exception to Adoption

Father argues that the court erred in failing to find that the sibling relationship exception under former section 366.26, subdivision (c)( 1)(E), applied. This subdivision provides an exception to the termination of parental rights if the court finds a compelling reason for determining that termination would be detrimental to the child due to a 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. (Former 366.26, subd. (c)(1)(E).)

[T]he court may reject adoption . . . only if it finds adoption would be detrimental to the child whose welfare is being considered. It may not prevent a child from being adopted solely because of the effect the adoption may have on a sibling. (In re Celine R. (2003) 31 Cal.4th 45, 49-50.)

Reflecting the Legislatures preference for adoption when possible, the sibling relationship exception contains strong language creating a heavy burden for the party opposing adoption. It only applies when the juvenile court determines that there is a compelling reason for concluding that the termination of parental rights would be detrimental to the child due to substantial interference with a sibling relationship. [Citation.] Indeed, even if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.] (In re Celine R., supra, 31 Cal.4th at p. 61.)

Here, even if we were to conclude that Isaacs and Ramons relationships with their siblings qualify as strong sibling relationships, the record indicates that their particularly strong need for a permanent home through adoption far outweighs the benefit to them of continuing their sibling relationships. For the purpose of this analysis, we take it as a given that the bonds that Isaac and Ramon have with their siblings are strong.

Isaac was age two and Ramon was age four when they were removed from their Mother in April 2004. They moved between several foster homes over the next two years, and were not placed with the prospective adoptive parents until April 2006,^[4]when they were ages four and six, respectively. Prior to arriving at the current foster parents home, Isaac was resistant to bathing and cried when directed to clean his room or use the bathroom. Ramon had toileting issues, was described as defiant and aggressive, and had difficulty completing his homework. After a year in the home of the prospective adoptive parents, Ramon had improved significantly at school, and had gone from being slightly behind in reading to being significantly ahead. Both boys are reported to feel comfortable in the current home, call the prospective adoptive parents Mom and Dad and both told the social worker that they wanted to be adopted into this home.

We agree with the juvenile court when it commented that its absolutely in the best interest of [Isaac and Ramon] to have the stability and love and support that [the prospective adoptive parents] offer, which is not available to the children otherwise. Because the children had been moved around often during the first two years of their three and one-half years of foster care, during the formative ages of two to four for Isaac and four to six for Ramon, it is especially important that they obtain a stable and loving home after so much instability and change in caretakers. Even assuming that Isaac and Ramon have a strong bond with their half siblings, the record simply does not reflect that the bond is so strong that it would be more beneficial to them to continue the sibling relationship rather than obtain an adoptive home with their current, apparently loving and nurturing caretakers. In addition, the prospective adoptive parents had stated their willingness to allow Isaac and Ramon to continue to visit with their siblings. Thus, we conclude that the Father has not met his burden to show that the sibling relationship to the preference for adoption applies in this case.

B. ICWA Inquiry

Father argues that this case should be remanded to the juvenile court so it can inquire as to whether Isaac and Ramon are Indian children, because there is no evidence that either parent was asked about their possible Native American background.

In general, ICWA applies to any state court proceeding involving the foster care or adoptive placement of, or the termination of parental rights to, a Native American child. (25 U.S.C. 1903(1), 1911(a)-(c), 1912-1918, 1920-1921.) Under the notice provision of ICWA, if the court knows or has reason to know that an Indian child is involved, the social services agency must notify . . . the Indian childs tribe . . . of the pending proceedings and of their right of intervention. (25 U.S.C. 1912(a).)

California Rules of Court, former rule 5.664, subdivision (d),^[5]which was in effect at the time of the termination of parental rights, provided that the court, the county welfare department, and the probation department have an affirmative and continuing duty to inquire whether a child for whom a petition under section 300 . . . is to be, or has been filed, is or may be an Indian child. Subdivisions (d)(2) and (d)(3) provided: (2) In dependency cases, the social worker must ask . . . the parents . . . whether the child may be an Indian child or may have Indian ancestors. [] (3) At the first appearance by a parent . . . in any dependency case, . . . the parent . . . must be ordered to complete Parental Notification of Indian Status (Juvenile Court) (form JV-130).

On the record before us, DCS fulfilled its duty of inquiry as to Father, because Fathers counsel asked him in open court at the jurisdiction and disposition hearing, Do you know if you have any Indian heritage, tribes membership in your family? to which Father replied, No.

However, we do not find any evidence that DCS inquired of Mother as to her Native American heritage.

Neither can we assume that DCS fulfilled its obligation to ask . . . the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors simply because the social worker did not check the boxes on any of the dependency petitions that would indicate the children may be of Indian ancestry and stated affirmatively in numerous reports that ICWA does not apply. (Cal. Rules of Court, former rule 5.664 (d)(2).)

We acknowledge that this court has previously held in In re S.B. (2005) 130 Cal.App.4th 1148 (S.B.) that such affirmative statements in the social workers reports and the lack of check marks in the appropriate boxes in the dependency petitions are sufficient evidence that the social services agency did ask the parents about their Native American heritage. However, the case at hand is distinguishable on its facts, and in this respect resembles In re J.N. (2006) 138 Cal.App.4th 450 (J.N.). In this case there was evidence on the record that Father, albeit by his own counsel, was asked whether he had Native American heritage, whereas there is no such evidence as to Mother.^[6] This difference in the record between the parents gives rise to an inference that the parent for whom there is no indication in the record that he or she was asked about their Native American heritage was in fact never asked. We thus conclude here, Mother, for whom there is no indication in the record that she was asked about her Native American ancestry, was in fact never asked.

We now reach the issue of prejudice. The source of the duty of inquiry is rule 5.664(d), not ICWA. [A]ny failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. [Citations.] (S.B., supra, 130 Cal.App.4th at p. 1162.)

We recognize that J.N. holds that the harmless error analysis does not apply in cases where, as here, the error was a complete failure to inquire into the childs Native American heritage. However, we note that the footnote in J.N., which distinguishes the leading cases employing harmless error as not involving a complete failure to inquire, does not mention S.B. (J.N., supra, 138 App.4th at p. 461, fn.6.) S.B. is completely on point here, in that it involves a complete failure to inquire into the childs Native American heritage, and appears to us to apply to the facts set forth in J.N. as well. Therefore, we conclude that the harmless error analysis used in S.B. is appropriate for the case at hand.

Here, there is absolutely nothing in the record to suggest that, if the juvenile court or the social worker had inquired, Mother would have reported any Native American ancestry. Accordingly, on this record, even if we were to reverse and remand with directions to make the requisite inquiry, there is no reason to suppose that the outcome would be any different. The only result would be waste and delay if we were to relieve the appellant Father of his burden to show a reasonable probability of a more favorable result in the absence of the error.

Fathers remedy, should he have some evidence that the children do indeed have some Native American ancestry, is to file a concurrent petition for writ of habeas corpus, alleging (under penalty of perjury; see Pen. Code, 1475) facts sufficient to show prejudice. (See In re Darlice C. (2003) 105 Cal.App.4th 459, 464-466.)

Disposition

The juvenile courts ruling terminating Fathers parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

RAMIREZ

P.J.

I concur:

HOLLENHORST

J.

KING, J., Concurring and Dissenting.

I concur with the majority in all respects, save and except I would remand to the trial court for purposes of inquiring as to Mothers Indian ancestry.

The majority, in applying harmless error, indicates there is absolutely nothing in the record to suggest that, if the juvenile court or the social worker had inquired, Mother would have reported any Native American ancestry. If Father was arguing that the court and/or social worker failed to inquire of his Indian Ancestry, I could perhaps agree with this application of harmless error. I cannot agree, however, when his complaint is that the court and/or social worker failed to inquire of Mothers ancestry. Clearly, Father at all times has been capable of making an offer of proof or other affirmative representation as to his ancestry. However, there has been no showing that he is or has ever been able to make a representation of Mothers ancestry. In the absence of a foundation that the information is within the appealing partys knowledge, we should refuse to speculate about what mothers response to any inquiry would be. (In re J.N. (2006) 138 Cal.App.4th 450, 461.)

I would therefore reverse for the limited purpose of having the court and social services inquire as to whether Mother has Indian ancestry.

/s/ King

J.

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

^[2] Former section 366.26, subdivision (c)(1)(E) is now section 366.26, subdivision (c)(1)(B)(v) effective January 1, 2008.

^[3] Only Isaac and Ramon are the subjects of this appeal by their father Ramon O., Sr. The other children are referred to only as necessary to resolve the issues Father raises in this appeal.

^[4] Isaac and Ramon were moved to their current placement after four-year-old Isaac was left at the park by a childcare provider working for the prior foster parents. Isaac was observed running after the childcare providers vehicle as it left the park. The foster parent went to the park to look for him about two hours later, by which time Isaac was in police custody

^[5] Rewritten and renumbered as California Rules of Court, rule 5.481, as of January 1, 2008.

^[6] In J.N., there was a form JV-130 on file for the father, but not the mother.