In re J.B.
Filed 6/13/08 In re J.B. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re J.B. et al., Persons Coming Under the Juvenile Court Law. | |
SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. M.P., Defendant and Appellant. | D051922 (Super. Ct. No. EJ2667B-C) |
APPEAL from a judgment of the Superior Court of San Diego County, Gary M. Bubis, Judge. Affirmed.
M.P. appeals the judgment terminating her parental rights over J.B. and Raven P. M.P. contends the juvenile court erred by finding the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) did not apply and by declining to apply the sibling relationship exception to termination of parental rights (Welf. & Inst. Code, 366.26, subd. (c)(1)(E)).[1] She also contends the children's trial counsel was ineffective. We affirm the judgment.
I.
BACKGROUND
In September 2005, when J.B. was nearly three years old and Raven was three months old, the San Diego County Health and Human Services Agency (the Agency) filed dependency petitions because M.P. used methamphetamine and the home was unsafe and unsanitary. The children were detained at Polinsky Children's Center with their eight-year-old half-sibling, Jay P. Later that month, all three children were moved to the home of their maternal great-aunt. That home eventually became a placement. In August or October 2006, Jay was moved to his father's home[2]for a trial placement, but was returned to the maternal great-aunt's home in February 2007. In May, the court ordered a permanent plan for Jay of another planned permanent living arrangement.
J.B. and Raven's section 366.26 hearing began in July and concluded in October.
II.
ICWA
"'Indian child' means any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." (25 U.S.C., 1903(4).) J.B. and Raven are not members of a tribe. M.P. has no American Indian heritage. J.B. and Raven's father, Michael B., is one-half Indian. He is an enrolled member of the Campo Band of Kumeyaay Indians with the requisite one-fourth Campo blood. He is also one-fourth Jamul Indian Village, another Kumeyaay tribe. He was not a member of the Jamul Indian Village. It is not possible to be a member of more than one tribe.
Initially, the parties believed J.B. and Raven were eligible for membership in the Campo Band. At the detention hearing, the court found ICWA applied and proceeded accordingly. ICWA notice was sent to the Campo Band. ICWA representatives attended the first three hearings in this case and counsel for the Campo tribe appeared at most subsequent hearings.
By the time of the section 366.26 hearing, the Campo Band acknowledged that J.B. and Raven were ineligible for membership or enrollment because they were only one-eighth Campo. According to tribal leaders, for approximately 20 years there had been periodic discussions about lowering the Campo Band blood quantum requirement to one-eighth. The change was probably going to occur, but the process would take at least five months. Furthermore, Campo Band enrollment had been closed for three years. Nevertheless, the tribal chairman testified that the tribe did not want to lose its ties to J.B. and Raven; it did not want J.B. and Raven to lose their relationships with their two half-siblings―Michael B., Jr. and Bridget―who were enrolled members;[3]it was opposed to adoption as culturally inappropriate; and it did not want parental rights terminated.
By the time of the section 366.26 hearing, ICWA notice had been sent to the Jamul Indian Village. The enrollment clerk of the Jamul Indian Village responded with a letter stating J.B., Raven, and their parents and grandparents were not enrolled members and enrollment was closed. There was no information when enrollment would open. Membership in the Jamul Indian Village required one-fourth Kumeyaay blood, a showing of direct descent from a Jamul Indian Village member, and approval by the tribal council. According to Carol Banegas, the Indian Child Social Services coordinator for Southern Indian Health Council, Inc., J.B. and Raven could apply to the Jamul Indian Village and be found eligible even though Michael was not an enrolled member.
At the section 366.26 hearing, the court found that although it had not ordered ICWA notice be sent to the Jamul Indian Village, proper notice had been given. The court concluded ICWA did not apply. M.P. contends the court erred by refusing to order further inquiry and notice of the Jamul Indian Village to determine whether J.B. and Raven would be eligible for membership if enrollment were opened. M.P. also
contends the testimony of the Campo tribal chairman, summarized above, supports application of the section 366.26, subdivision (c)(1)(F) exception to termination. Both contentions are incorrect.
J.B. and Raven were not eligible for membership in the Campo Band. A possible future lowering of eligibility requirements does not change this. Thus, ICWA did not apply as to the Campo Band. The letter from the Jamul Indian Village did not address J.B.'s and Raven's eligibility for membership. The lack of a response on that subject supports a determination that ICWA did not apply as to the Jamul Indian Village. (See 224.3, subd. (e)(3).)
Finally, section 366.26, subdivision (c)(1)(F) provides an exception to termination of parental rights upon clear and convincing evidence of adoptability where "[t]he child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to[, that] termination would substantially interfere with the child's connection to his or her tribal community or the child's tribal membership rights." In view of the definition of "Indian child" in 25 United States Code section 1903(4), application of section 366.26, subdivision (c)(1)(F) would require that J.B. and Raven be eligible for membership in an Indian tribe. As discussed above, they are not. Moreover, termination of parental rights would not substantially interfere with their connection to the community or their tribal membership rights. J.B. and Raven remained eligible for health care from the Southern Indian Health Council, Inc. Termination of parental rights would not prevent them from later becoming members of the Campo Band and receiving revenue or services.
III.
THE SIBLING RELATIONSHIP EXCEPTION
Section 366.26, subdivision (c)(1)(E) provides an exception to termination of parental rights if there would be substantial interference with the child's sibling relationship and the severance of that relationship would be so detrimental to the child as to outweigh the benefits of adoption. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 951-953; 366.26, subd. (c)(1)(E).) The juvenile court must "balance the beneficial interest of the child in maintaining the sibling relationship, which might leave the child in a tenuous guardianship or foster home placement, against the sense of security and belonging adoption and a new home would confer." (In re L. Y. L., supra, 101 Cal.App.4th at p. 951, citing In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) Factors to be considered include whether the siblings were raised in the same home, whether they shared significant common experiences or have existing close and strong bonds, and whether ongoing contact is in their best interests, including their long-term emotional interest, as compared to the benefit of adoption. ( 366.26, subd. (c)(1)(E).) Examining the evidence in the light most favorable to the judgment, we conclude substantial evidence supports the juvenile court's implied finding M.P. did not meet her burden of proving the sibling relationship exception. (In re L. Y. L., supra, 101 Cal.App.4th at pp. 947, 952.)
At the inception of this case, J.B. was nearly three years old, Raven was only three months old, and Jay was eight years old.[4] They were detained and placed together for approximately one year, and then again for eight months before the section 366.26 hearing concluded. Sibling visits occurred during the time Jay was placed his father. The Agency believed ongoing contact was in the children's best interests, as they shared common experiences and a strong bond.
The maternal great-aunt and uncle wished to adopt J.B. and Raven. They met the Agency's requirements for relative home approval and it was likely there would be no impediments to the approval of their adoptive home study. The maternal great-aunt and uncle were devoted to Jay and wanted him to remain in their home.[5]They were committed to maintaining contact among the siblings. Thus, there was no indication of a substantial interference with J.B.'s and Raven's relationship with Jay. Even if there would be such interference, any resulting detriment to J.B. and Raven would be outweighed by the benefits they would derive from adoption. They were thriving in the care of their maternal great-aunt and uncle, who provided a safe and loving home. J.B. and Raven needed stability and permanence.
The juvenile court did not err by failing to apply section 366.26, subdivision (c)(1)(E).
IV.
CHILDREN'S COUNSEL
M.P. contends the children's trial counsel had a conflict of interest because he represented Jay as well as J.B. and Raven, counsel argued J.B. and Raven were not Indian children and should be adopted by their maternal great-aunt, and Jay was an enrolled member of the Campo Band and was not being adopted by the maternal great-aunt.
M.P.'s premises are not entirely correct. Jay was not a member of the Campo Band, nor was he eligible for membership. While he was not going to be adopted, there was no indication he was going to be placed anywhere other than with J.B. and
Raven. Contrary to M.P.'s suggestion, the children's different ages, fathers, and permanent plans "standing alone, do not necessarily demonstrate an actual conflict of interest." (Cal. Rules of Court, rule 5.660(c)(2)(B)(i), (ii), (v).) M.P. has not demonstrated a conflict of interest and, in any case, she has not shown how the outcome would have been different if there had been separate children's attorneys.
V.
DISPOSITION
The judgment is affirmed.
O'ROURKE, J.
WE CONCUR:
HUFFMAN, Acting P. J.
HALLER, J.
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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise specified.
Effective January 1, 2008, the Legislature amended and renumbered section 366.26, subdivision (c)(1). (Stats. 2006, ch. 838, sec. 52, pp. 4999-5000.) Because the proceedings at issue here occurred before the statutory change, we refer to the earlier version of the statute.
[2] Jay's father lived on the reservation of the Campo Band of Kumeyaay Indians.
[3] There is no further information in the record regarding these two half-siblings. Jay was not currently eligible for membership.
[4] To the extent Mother intends her contention to apply to any siblings other than Jay, there is absolutely nothing in the record to support it.
[5] The children's maternal grandmother, who lived in Wisconsin, also wished to provide all of the children a permanent home. She had an approved home study.
