In re Gabriel H.

Filed 6/17/08 In re Gabriel H. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(El Dorado)

Lorie H., mother of the minors, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, 366.26, 395 [further undesignated statutory references are to this code].) Appellant contends the court erred in finding no detriment to the minors in terminating her parental rights because, she argues, the evidence showed there was a significant sibling bond. Appellant also contends the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C.

1901 et seq.) were not fulfilled. Agreeing only with the latter contention, we reverse.

FACTS

The Department of Human Services (DHS) filed a petition in August 2006 to declare the minors Gabriel, age 5, and Loegan, age 3, dependents due to appellants neglect of the medical care necessary to maintain the well-being of Gabriel, who was diagnosed with cerebral palsy. Appellants other children resided with the maternal grandparents or the childs father. The court adopted a family maintenance plan to provide support for appellant and the minors remained in her care.

Appellants ability to cope with the challenges of her children did not improve and DHS filed a supplemental petition in October 2006. The court detained the minors and adopted a reunification plan. The minors were placed separately due to Gabriels need for foster parents who had experience with special needs children. The diagnosis for the condition responsible for Gabriels delays was later changed to fetal alcohol syndrome.

Appellant claimed Cherokee heritage through the maternal great-grandfather. Notice of the proceedings was mailed to each of the three federally recognized Cherokee tribes although the ancestor information in the notice did not agree with that provided by appellant. Corrected notices were subsequently sent in November 2006 and in March 2007.^[1] In a status review report filed in April 2007, DHS reported it received a letter from the Eastern Band of Cherokee Indians that the minors were not Indian children with respect to that tribe. DHS also received a letter from the Cherokee Nation in December 2006 seeking additional information. Because the mother had been out of contact, the information was not provided to the tribe but DHS indicated that it would be if it became available. Copies of the letters do not appear in the record, however, there is a later letter from the Cherokee Nation, which still lacked the maternal grandmothers birthdate and contained inaccurate information about the maternal grandfather, that stated the minors would not be considered Indian children based upon the information provided. DHS relied upon this letter in a later report.

Despite intensive services for a year, appellant failed to comply with the elements of her reunification plan. The court terminated services in August 2007, set a section 366.26 hearing and continued the weekly sibling visits.

The report for the section 366.26 hearing stated that six-year-old Gabriel still required a G-tube for morning feeding and had some difficulty drinking liquids. He was on medication for hyperactivity and impulse control. Gabriel remained severely developmentally delayed and was unable to speak. Loegan was developmentally on target and had some behavioral difficulties in kindergarten which improved with a new teacher. He was in therapy to address that issue and the abuse he suffered when younger. He had a close healthy bond with his family and was excited about being adopted by his current caretakers. An addendum stated that a potential foster home had also been located for Gabriel but that a continuance was needed to explore the placement.

At the hearing, appellant testified that Loegan showed affection to Gabriel in visits. She said that the two used to be inseparable but this was no longer true. She was able to see the change in their interaction in visits. Appellant acknowledged that the bond and emotional attachment the minors previously enjoyed had lessened over time. However she believed the minors were close and needed each other as brothers.

The court found Loegan was likely to be adopted and that the sibling relationship exception to the preference for adoption did not apply. The court further found adoption was the goal for Gabriel and continued his case for homefinding while terminating parental rights as to Loegan.

DISCUSSION

I

Appellant contends DHS failed to comply with the notice requirements of the ICWA in that it failed to properly discharge its duty of inquiry. Respondent concedes the issue.

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 DHS 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 5.481(a).) The duty of inquiry is active and reaches beyond the parents to extended family members. ( 224.3, subd. (c).) This does not mean that DHS must perform an extended genealogical investigation. However, when, as here, extended family members who may be expected to have relevant information are known and in contact with the agency, inquiry efforts must be made to provide accurate information which is of value to the tribes in determining the minors status. Because the record is incomplete on the question of inquiry we cannot conclude the error is harmless and accept respondents concession.

II

Appellant contends the court erred in determining the sibling exception to the preference for adoption did not apply.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of [several] possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption.

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 [citations omitted]; 366.26, subd. (b), (c)(1)(B)(vi).) There are only limited circumstances which permit the court to find a compelling reason for determining that termination 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, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code,  500.)

One of the circumstances in which termination of parental rights would be detrimental to the minor 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)(B)(v).)

The court must consider the interests of the adoptive child, not the siblings, in determining whether termination would be detrimental to the adoptive child. (In re Daniel H. (2002) 99 Cal.App.4th 804, 812; In re Celine R. (2003) 31 Cal.4th 45, 49-50, 54.)

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.)

The minors had spent the early years of their lives together and, as appellant testified, had developed a close relationship. However, during the year of separate placements, the relationship changed as the experiences of the minors differed and their contact was limited. Appellants testimony clearly demonstrated the change which had occurred. Thus, while the minors continued to have a relationship which was positive, the significance of the relationship had lessened and no longer outweighed the benefit to Loegan of a permanent and stable home. The court did not err in finding the sibling exception had not been established.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of determining whether DHS has complied with the inquiry and notice provisions of the ICWA and whether ICWA applies in this case. If, after proper inquiry, the juvenile court determines that the tribes were properly noticed with all available information and there either was no response or the tribes determined that the minors were not Indian children, the orders shall be reinstated. However, if, after new notice, any tribe determines the minors are Indian children, the juvenile court is ordered to conduct a new section 366.26 hearing in conformance with all provisions of the ICWA.

BLEASE , Acting P. J.

We concur:

HULL, J.

BUTZ , J.

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^[1] The two notices apparently created some confusion as can be seen in the response from the Cherokee Nation filed in May 2007.