In re Aaron H.

Filed 6/23/08 In re Aaron H. CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

Corina C. (Corina) appeals from an order terminating her parental rights after a Welfare and Institutions Code section 366.26 hearing.^[1] She contends the order must be reversed because: (1) notification under the Indian Child Welfare Act (25 U.S.C.  1901 et seq.; ICWA) was incomplete; and (2) the order would substantially interfere with her childs relationship with a sibling. We remand the matter to the juvenile court for further notice under the ICWA and for further proceedings consistent with this opinion.

I.                    FACTS AND PROCEDURAL HISTORY

The Contra Costa County Children and Family Services Bureau (Bureau) filed a petition in July 2006 under section 300, subdivisions (b) and (j), contending that two-day-old Aaron H. (Aaron) came within the jurisdiction of the juvenile court. In regard to subdivision (b), the petition alleged: Aaron tested positive for methamphetamine at birth; the mother, appellant Corina, used illegal drugs throughout her pregnancy, tested positive for methamphetamine at Aarons birth, and failed to obtain adequate prenatal care; and the father, Aaron Sr., failed to protect Aaron from Corinas substance abuse during pregnancy. As to subdivision (j), the petition alleged that Corina had recently failed to reunify with Aarons sibling.

Aaron was detained on July 20, 2006, and the parents were allowed supervised visitation. Aaron Sr.s status was raised to presumed father.

A.                 Notification Under the Indian Child Welfare Act

Aaron Sr. informed the social worker on July 18, 2006,that he had Cherokee lineage but neither he nor Aarons paternal grandparents were enrolled members of the Cherokee Nation. He further stated that Aaron was not eligible for enrollment in the tribe, and he could not provide additional information regarding a specific Cherokee band or location.

On or about July 24, 2006, Aaron Sr. completed and signed a Parental Notification of Indian Status form (JV-130), noting he may have Indian ancestry. He did not provide the name of a federally recognized tribe of which he might be a member or any other requested information. Corina completed and signed a JV-130 the same day, denying Indian ancestry.

On August 8, 2006, the Bureau sent form JV-135, the Judicial Councils mandatory form entitled Notice of Involuntary Child Custody Proceedings for an Indian Child (JV-135), to the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians, and the Eastern Band of Cherokee Indians, as well as the Bureau of Indian Affairs (BIA). The JV-135 set forth: Corinas legal and maiden name, birthdate, place of birth, and current and former addresses; Aaron Sr.s legal name, birthdate, birthplace, and current address; the paternal grandfathers name, birthdate, birthplace, and tribal affiliation (Cherokee); and the paternal great-grandmothers name. It did not include the name of or information regarding the paternal grandmother. On page 6, the JV-135 form inquired whether any of the following applied: Birth father is named on birth certificate; Birth father has acknowledged paternity; There has been a judicial declaration of paternity. The Department checked these items as unknown.

Response letters or return receipt cards received from the BIA and the three tribes indicated that all of those entities received the JV-135. The only tribe to respond substantively, the United Keetoowah Band of Cherokee Indians, wrote on August 11, 2006, that based on the supplied information there was no evidence in the tribes enrollment records that Aaron was descended from anyone on the Keetoowah Roll, Aaron was not eligible for enrollment, and the tribe would not intervene in the proceedings.

B.                 Jurisdictional Report and Hearing

The Bureaus jurisdiction report, dated August 23, 2006, advised that the ICWA does or may apply and recounted the information Aaron Sr. had provided to the social worker.

An ICWA Table of Exhibits was also prepared and submitted to the court at the August 31, 2006, jurisdictional hearing. The attached documents included: the JV-135; Aaron Sr.s completed and signed JV-130; return receipt cards from the BIA, the three tribes, Aaron Sr., and Corina; and the letter from the United Keetoowah Band of Cherokee Indians stating that Aaron was not eligible for enrollment.

The section 300 petition was sustained as amended on August 31, 2006. The minute order of August 31, 2006, reads in part: Minor is not an Indian Child.

C.                 Disposition Report

In its disposition report dated September 28, 2006, the Bureau recommended reunification services for Aaron Sr. and Corina, despite the fact that Corina had a lengthy child welfare history in four different counties and, one month earlier, reunification services were terminated as to another of her children due to her failure to participate in services. The report also indicated that both Corina and Aaron Sr. had lengthy histories of substance abuse, domestic violence, criminal charges, and arrests. Until recently, the report added, Aaron Sr. was unemployed and living in a trailer, with [Corina], at the back of his parents property in Oakley.

In addition, the report confirmed that the juvenile court had held an ICWA compliance hearing on August 31, 2006, and determined that Aaron was not an Indian child and the ICWA did not apply.

D.                Placement with Paternal Grandparents

On October 9, 2006, Aaron was placed in the home of his paternal grandparents in Oakley, California, after the social worker determined that Aaron Sr. had moved to another residence.

E.                 Disposition Order

The contested disposition hearing was held in December 2006. The juvenile court found, among other things, that return of Aaron to the home would create a substantial risk to his wellbeing and there was clear and convincing evidence that his welfare required physical custody to be removed from the parents (see  361, subd. (c)). The court permitted supervised visitation twice monthly and ordered family reunification services for both parents. Corina and Aaron Sr. were advised that their parental rights might be terminated if they were unable to resume custody.

F.                  Six-Month Status Review

The Bureaus six-month status review report, signed February 23, 2007, noted that Corina and Aaron Sr. were participating in therapy, parent education, and 12-step meetings. Their weekly visits with Aaron had gone well, and the parents appeared committed to each other. The Bureau recommended an additional six months of family reunification services for both parents. The report further advised that Aaron was doing well in his placement with his paternal grandparents, who expressed a willingness to assume legal guardianship or pursue adoption if the parents were unable to reunify.

The status review hearing was continued, however, when the Bureau learned that Aaron Sr. and Corina had recently been involved in a domestic violence dispute that could have resulted in the miscarriage of their unborn child.

After conducting an investigation, the Bureau revised its evaluation in a memorandum to the court dated April 12, 2007, recommending that the court terminate reunification services to both parents and set a permanent placement hearing pursuant to section 366.26. In support of this recommendation, the Bureau detailed the recent domestic violence incident and, in addition, cited Corinas positive tests for methamphetamine, her failure to continue with substance abuse treatment and therapy, her failure to maintain contact with the social worker, and her failure to schedule visits with Aaron. Similarly, the Bureau advised, Aaron Sr. had failed to complete required drug testing, failed to maintain contact with the social worker, and failed to visit with Aaron. He had also been arrested recently.

The contested six-month review hearing was held on April 25, 2007. Aaron Sr. was present, but Corina was not. A social worker testified that Aaron Sr. had completed anger management and a parenting class and was bonding with Aaron, but he had missed drug tests and had not attempted to make up a visit with Aaron, claiming he was too busy and the paternal grandmother would not supervise his visits. The social worker indicated that Aaron Sr. still had anger management and domestic violence issues and was recently arrested. In addition, the social worker testified, Corina had not completed a required substance abuse program, had not visited with Aaron since February 15, 2007, and had not called to ask about him. Aaron Sr. testified that he visited regularly with Aaron, he was participating in therapy, was working on his relationship with Corina, had completed a parenting class, and had not been charged with any crime since an incident on April 11, 2007 (two weeks before the hearing).

The juvenile court determined that neither Aaron Sr. nor Corina had made substantial progress on their respective case plans, ordered the termination of their reunification services, and set a hearing pursuant to section 366.26. Supervised visitation was reduced to one visit per month.

G.                Aaron Sr.s Writ Petition

Aaron Sr. filed a petition in this court seeking extraordinary writ review of the order terminating reunification services and setting the section 366.26 hearing. We denied the petition in July 2007.

H.                Permanency Planning Report and Hearing

The report for the section 366.26 hearing, filed on August 7, 2007, recommended termination of parental rights and adoption as a permanent plan. According to the report, Aaron Sr. and Corina were living together. There had been 16 referrals regarding Corinas other children in four California counties, and her parental rights to another child had been terminated in 2006. Corina had given birth to a baby girl, M., in September 2007, but M. was released to Aaron Sr. because Corina was incarcerated. The Bureau was in the process of recommending dependency for M. as well. Neither Corina nor Aaron Sr. had visited with Aaron since the setting of the section 366.26 hearing in April 2007.

The report further advised that Aaron remained in the home of his paternal grandparents, where he was placed in October 2006. As Aarons potential adoptive parents, the paternal grandparents were committed to providing him with a stable, loving home and had expressed their desire to adopt him. They had been married since 1967, had three adult children, built their home together 30 years ago, and lived on five acres of land where they boarded horses and raised chickens. The potential adoptive mother was intelligent, sincere, honest, nurturing and cooperative, and she fell in love with Aaron the first time she saw him. The potential adoptive father was a retired contractor who enjoyed taking care of Aaron and his other grandchildren. They were meeting all of Aarons medical, emotional and physical needs. An adoption home study was in process, and the Bureau believed the home study would be approved and Aaron was a generally adoptable child.

The contested section 366.26 hearing was continued due to Corinas incarceration. When the hearing commenced on October 29, 2007, both parents were present. Corinas attorney requested that the juvenile court allow an oral 388 motion, contending reunification would be in Aarons best interests because Corina loved him and was determined to provide for him. After considering counsels offer of proof, the juvenile court concluded there was not a sufficient showing to hold an evidentiary hearing and denied the petition.

At the continued permanency planning hearing on November 5, 2007, the social worker reported that the adoption home study had been completed and the grandparents were eager to move forward with the adoption.

Aaron Sr. testified about attempts he had allegedly made to schedule visits through the Bureau, blaming the Bureau for not returning his calls. He also testified that he thought his visits with Aaron went well, because his 11-year-old daughter, C., had accompanied him and enjoyed the visits, and it appeared that Aaron enjoyed the visits as well. Although C. had been visiting with Aaron every other week, since Aarons younger sister, M. was born, the children were visiting weekly. Aaron Sr. would sit in the car during the visits because he was not allowed in the house.

In closing arguments, Corinas counsel contended that the court should not terminate parental rights and that the sibling exception ( 366.26, subd. (c)(1)(A)) applied. Aarons counsel, as well as counsel for the Bureau, urged the court to follow the Bureaus recommendations so that Aaron could be adopted by his paternal grandparents. The Bureau represented that Aaron was doing well and thriving in their home.

The juvenile court adopted the Bureaus recommendation and terminated parental rights on November 5, 2007. The court found that Aaron was an adoptable child and that, since Corina and Aaron Sr. had not visited Aaron, there was no parental relationship. In rejecting application of the sibling exception, the court noted that the children had never lived together, they only had casual visits, and any sibling relationship had been fostered by the grandparents, whom the court believed would continue their relationship.^[2]

This appeal followed.

II.                 DISCUSSION

Corina contends: (1) notification under the ICWA was insufficient; and (2) the order terminating parental rights would substantially interfere with Aarons sibling relationships.^[3]

A.                 Notification Under the Indian Child Welfare Act

Corina maintains that the notice of dependency proceedings required under the ICWA was defective, because the JV-135 form did not specify the name of the paternal grandmother or Aaron Sr.s status as Aarons presumed father. Without this information, Corina argues, the Indian tribes failure to respond to the notices, and the determination by the United Keetowah Band that Aaron was not an enrolled member in the tribe, were meaningless. (See, e.g., In re Jennifer A. (2002)103 Cal.App.4th 692, 705; see also In re D. T. (2003)113 Cal.App.4th 1449, 1455.) On this basis, she urges, the juvenile court failed to ensure that the Bureau had complied with the ICWA, and the section 366.26 order must be reversed. (See In reDesiree F. (2000) 83 Cal.App.4th 460, 474-475; In reSamuel P. (2002) 99 Cal.App.4th 1259, 1268.)

1.                  ICWA Notice Requirements

Under the ICWA, an agency seeking to detain a child who is or may be of Indian ancestry must notify the childs tribe and family. (See generally 25 U.S.C.,  1912(a).) This notice must comply with the ICWA notification requirements, because it provides the tribe with the opportunity to assert its ICWA rights. (In re S.M. (2004) 118 Cal.App.4th 1108, 1115 [One of the primary purposes of giving notice to the tribe is to enable it to determine whether the minor is an Indian child]; see In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Nikki R. (2003) 106 Cal.App.4th 844.)

The notice must advise the tribe or the BIA of the childs name, birthplace and birthdate (25 CFR 23.11(d)(1)), and the name of the Indian tribe in which the child is or may be eligible for enrollment (25 CFR 23.11(d)(2)). (In re S.M., supra, 118 Cal.App.4th at p. 1116.) In addition, the notice must provide the information set forth in the BIA Guidelines at 25 Code of Federal Regulations section 23.11, subdivision (d)(3): All names known, and current and former addresses of the Indian childs biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information. (Italics added; see In re C.D. (2003) 110 Cal.App.4th 214, 225.) Thus, the notice must contain all known names and addresses of the childs paternal grandparents. (In re C.D, at p. 225.)

The burden is on the Agency to obtain all possible information about the minors potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA. (In re Louis S. (2004) 117 Cal.App.4th 622, 630; italics added.) The social worker has a duty to inquire about and obtain, if possible, all of the information about a childs family history required by 25 CFR 23.11(d)(3). (In re C.D., supra, 110 Cal.App.4th at p. 225; In re S.M., supra, 118 Cal.App.4th at p. 1116.)

Several courts have emphasized the importance of strict compliance with ICWA notice requirements and, if necessary, have remanded the matter for the juvenile court to ensure that proper notice is given. (In re I.G. (2005) 133 Cal.App.4th 1246, 1254; see, e.g., In re Karla C. (2003)113 Cal.App.4th 166, 171-172, 178-179 [ICWA notice must be filed with the court, and failure to do so is not harmless where the record does not show that the required information was sent to the tribe]; Nikki R., supra, 106 Cal.App.4th at pp. 849-850, 855-856 [remand where record insufficient to show compliance with the ICWA notice requirements]; In reH.A. (2002) 103 Cal.App.4th 1206, 1214-1215 [ICWA notice must be served on tribe and filed with the court along with proof of service].)

2.                  Omission of Paternal Grandmothers Name from
JV-135

As mentioned, under 25 CFR 23.11(d)(3), the notice must identify the known names and addresses of the paternal grandparents, and the Bureau must make a reasonable inquiry in that regard. (In re C.D., supra, 110 Cal.App.4th at p. 225.) Here, the JV-135 listed Corina, Aaron Sr., the paternal grandfather, and the paternal great-grandmother, but it did not list the paternal grandmother. Based on the record before us, her name and address were known or readily available to the Bureau, because the Bureau was in contact with Aaron Sr., they lived at the same address, and the address of the paternal grandmother was the same as that of the paternal grandfather, whose name and address the Bureau listed on the JV-135. The failure to identify the name and address of the paternal grandmother was error. (In re C.D., at p. 225.)

The Bureau urges us to infer from its listing of the persons who were listed on the JV-135 that any possible Cherokee heritage flowed through those relatives alone, and the name of Aarons paternal grandmother was not relevant to the inquiry. As Corina points out, however, there is no basis for such an inference from the record in this case, because even though Corina undisputedly had no Indian heritage, the Bureau still provided known information about her on the JV-135, including her three names and nine addresses. Thus, even if the paternal grandmother was not believed to have any Indian heritage, the Bureau still could have provided her name and indicated that she was not believed to be of Indian ancestry.

The Bureau also contends that any error in its omission of the paternal grandmothers name and address was harmless, because Corina has not established a reasonable chance that the error affected the result in this case. While Corina contends the tribes might have considered the paternal grandmothers identity in determining whether Aaron is an Indian child, she does not explain why this would be so. Indeed, Aaron Sr. informed the social worker that neither he nor the paternal grandparents are enrolled members of the Cherokee Nation. Corina does not explain how the omission of the paternal grandmothers name would have made any difference if, in fact, neither she nor Aaron Sr. was an enrolled member. (See 25 U.S.C.  1903(4) [ Indian child means any unmarried person who is under the age of 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].)

Nonetheless, we conclude that the omission of the name of the paternal grandmother was not harmless in this case, for several reasons. First, for much the same reason that parents cannot waive the ICWA rights of the tribe, Aaron Sr.s mere statement of belief that he and the paternal grandparents were not enrolled members, despite his claim of Cherokee lineage, should not in itself justify the Bureaus decision to omit those relatives from the JV-135. It remains possible that the father or grandparents were enrolled unbeknownst to Aaron Sr., and the record discloses no indication that any such inquiry was made of the paternal grandparents. (See Jennifer A., supra, 103 Cal.App.4th at p. 705 [failure to obtain mothers and fathers birthplaces, even though they were participating in the proceeding].)

Second, the Bureau may share our view in practice, since it included Aaron Sr. and the paternal grandfather on the JV-135, despite Aaron Sr.s claim that they were not enrolled members of the tribe.

Third, we note the repeated judicial call to enforce the ICWA notice requirements strictly. (See, e.g., In re I.G., supra, 133 Cal.App.4th at p. 1254.) Other courts have found noncompliance with ICWA notice requirements to constitute prejudicial error. (See, e.g., In re Desiree F., supra, 83 Cal.App.4th at p. 472 [The failure to provide the necessary notice requires this court to invalidate actions taken in violation of the ICWA and remand the case unless the tribe has participated in or expressly indicated no interest in the proceedings. [Citation.] Unless one of these exceptions applies, the failure to comply with 25 United States Code section 1912(a) constitutes prejudicial error. [Citation.]]; In re Kahlen W., supra, 233 Cal.App.3d at p. 1424 [Courts have consistently held failure to provide the required notice requires remand unless the tribe has participated in the proceedings or expressly indicated they have no interest in the proceedings. . . . The juvenile courts failure to secure compliance with the notice provisions of the [ICWA] is prejudicial error.].)

Lastly, we must be mindful that, if Aaron was determined to be an Indian child, the ICWAs more stringent standards of proof would apply, with the potential for a different disposition at the section 366.26 hearing. For example, under the ICWA, parental rights may not be terminated unless the court determines, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. (25 U.S.C.  1912(f).) This standard is more stringent than that of section 366.26, subdivision (c)(1)(A), by which the parent must prove that the benefit of the childs relationship with her parent is more beneficial than the stability of adoption. (In re Autumn H. (1994) 27 Cal.App.4th 567, 575; see also 25 USC  1912(d) [requiring finding beyond a reasonable doubt that active efforts [had] been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts [had] proved unsuccessful].) Here, the court did not rule beyond a reasonable doubt, upon qualified expert witness testimony or otherwise, that serious emotional or physical damage to Aaron would arise from parental custody.

The omission of the paternal grandmother from the JV-135, under the facts of this particular case, rendered the ICWA notice insufficient. The matter must be remanded to the juvenile court for proper notification under the ICWA.

3.                  Failure to Mention Aaron Sr.s Status as Presumed Father

Corina contends the JV-135 was also insufficient because it failed to state that Aaron Sr. was the presumed father, even though the court had made that finding before the ICWA notices were sent. The Bureau contends that the JV-135 does not ask for the fathers status, be it alleged, biological, adjudicated or presumed.

It is true that the JV-135 does not specifically inquire about presumed father status. Corina argues, however, that the fathers presumed father status encompasses matters that are requested on page 6 of the JV-135: whether he is named on the birth certificate (see Fam. Code,  7611, subd. (c)(1)), whether he acknowledges paternity (see Fam. Code,  7573,  7611, subd. (d)), or whether there has been a judicial declaration of paternity (see Fam. Code,  7611). As to these queries, the Bureau indicated that the matters were unknown. Further, Corina contends, Aaron Sr.s paternity status may have been a factor the Indian tribes would have considered in determining whether Aaron is an Indian child, although she fails to explain why.

We need not and do not decide whether an ICWA notice to the tribe always requires a presumed father to be identified as such. In light of our conclusion that the notice in this case was insufficient on other grounds, new notice must be sent anyway. Because the Bureau knows Aaron Sr.s paternity status, and there appears no reason not to include this information and responses to the related inquiries on page 6 of the JV-135, Aaron Sr.s paternity status and the answers to those inquiries should be included in the ICWA notice that is to be provided in this case after remand.

4.                  Remand

Based on the foregoing, we will remand the matter to the juvenile court for proper notice under the ICWA and as set forth in this opinion. Until such notice has been given, and until such time as the juvenile court may determine anew that Aaron is not an Indian child and the ICWA does not apply, we will conditionally vacate the order terminating parental rights.^[4] If it is determined that Aaron is an Indian child, the juvenile court shall invalidate the orders which violated the ICWA. (See 25 U.S.C.  1914; Cal. Rules of Court, rule 5.486.)

But we are also sensitive to the importance of establishing placement and permanence in the life of a dependent child. Therefore, if Aaron is found anew not to be an Indian child under the ICWA, the order terminating parental rights shall be reinstated, subject to the juvenile courts consideration of any new circumstances that might affect the outcome. (See In re Justin S., supra, 150 Cal.App.4th at p. 1437; Nikki R., supra, 106 Cal.App.4th at pp. 855-856.)

To expedite the resolution of this matter, and to guide the court, parties and counsel in the event the section 366.26 order is reinstated upon remand, we next consider the remaining issue Corina has raised in this appeal.

B.                 Sibling Relationship Exception to Adoption

At a permanency planning hearing under section 366.26, the juvenile court must make one of several possible alternative placement plans for a minor, if it determines the minor is adoptable. ( 366.26, subd. (b)(1)-(5).) Of the these alternatives, adoption is the permanent plan favored by the Legislature. ( 366.26, subd. (b); In re Brian R. (1991) 2 Cal.App.4th 904, 923-924.) Thus, where (as here) the child is adoptable, the court must implement a plan of adoption and terminate parental rights unless one of the specified exceptions applies. (Former  366.26, subd. (c)(1)(A)-(E); current  366.26, subd. (c)(1)(B).)

Corina contends the sibling relationship (former section 366.26, subd. (c)(1)(E), current section 366.26, subd. (c)(1)(B)(v)), applied because there was sufficient evidence that Aaron would be harmed if his relationship with his sibling, C., was terminated. Current section 366.26, subdivision (c)(1)(B)(v) states: There 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.

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; italics added.) In determining whether the sibling relationship exception applies, the question is whether adoption would be detrimental to the potential adoptive child (Aaron), not the sibling (C.). (In re Celine R. (2003) 31 Cal.4th 45, 49-50.) Nonetheless, the siblings views of the relationship might be used as evidence of detriment to the potential adoptive child. (Id. at p. 55; see In re Naomi P. (2005) 132 Cal.App.4th 808, 823-824.)

Here, the requirements of the sibling relationship exception were not met. Aaron and C. were not raised in the same home, there is no evidence they shared significant common experiences, and there is little indication they had a close and strong bond. The only evidence of a bond comes from Aaron Sr.s testimony that Aaron, who was just 16 months old at the time of the section 366.26 hearing, had been visited by C. every weekend or every other weekend, and C. always reported what Aaron did during the visits, that he was cute, how much she loves him, and how Aaron loves her and wants her to kiss him and carry him. While Aaron and C. may well have enjoyed their visits very much, there is no showing that Aaron would suffer detriment, within the meaning of the sibling relationship exception, if those visits ceased.^[5]

Moreover, even if the evidence established a sufficiently close or strong bond between Aaron and C., overwhelming evidence supports the conclusion that the benefit of their ongoing contact was outweighed by the benefits of adoption. The section 366.26 report stated that Aaron continued to do well in his prospective adoptive parents home, where he had lived for about a year, an adoption home study was likely to be approved, the paternal grandparents were committed to providing him with a stable, loving home, and they were meeting all of Aarons medical, emotional and physical needs. (See In re Daisy D. (2006) 144 Cal.App.4th 287, 293 [childs enjoyment of visits with half-siblings between two and four times a month, for two years, was insufficient to establish sibling relationship exception absent evidence of a sufficiently compelling reason to forego the stability and permanency of adoption by caretakers to whom [the child] was closely bonded].)

Corina has failed to establish error in the courts determination that the sibling relationship exception did not apply.

III.               DISPOSITION

The order terminating parental rights is conditionally vacated, and the matter is remanded to the juvenile court for the Bureau to provide prompt and proper notice under the ICWA and as set forth in this opinion. If it is determined that Aaron is an Indian child, the juvenile court shall invalidate the order or orders which violated the ICWA and proceed in accordance with the ICWA and other applicable law. If it is determined anew that Aaron is not an Indian child, the order terminating parental rights shall be reinstated, subject to the juvenile courts consideration of any new material circumstances.

NEEDHAM, J.

We concur.

SIMONS, Acting P. J.

REARDON, J.*

        Judge of the Superior Court of Alameda County, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Publication Courtesy of California free legal resources.

Analysis and review provided by Spring Valley Property line attorney.

San Diego Case Information provided by www.fearnotlaw.com

^[1] Except where indicated otherwise, all statutory references are to the Welfare and Institutions Code.

^[2] The paternal grandparents request for de facto parent status was also granted on November 5, 2007.

^[3] Corina contends that a non-Indian parent has standing to assert an ICWA violation on appeal because the heightened requirements of the ICWA benefit the non-Indian as well as the Indian parents. (See In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.) Furthermore, although neither Corina nor Aaron Sr. claimed any noncompliance with ICWA notice requirements, Corina argues they did not waive those ICWA requirements on behalf of the Indian tribes. (See In reSuzanna L. (2002) 104 Cal.App.4th 223, 231-232; In reJennifer A. (2002) 103 Cal.App.4th 692, 706.) Corina also claims that a parent has standing to assert the sibling relationship exception to adoption on appeal. (See In re Erik P. (2002) 104 Cal.App.4th 395, 402.) Because the Bureau does not contend that Corinas appeal is barred for lack of standing or waiver, we do not consider these issues further and instead proceed to the merits.

^[4] Corina further requests that she be provided with notice of the ICWA hearing and, if she is incarcerated at the time, with transportation to the hearing, and that her attorney be reappointed to represent her in the remand hearing. We leave these matters to the trial court. (See In re Justin S. (2007) 150 Cal.App.4th 1426, 1437.)

^[5] The juvenile court found that the grandparents would keep up [the sibling] relationship because they think its important and theyve been supportive, also with M. Corina argues that the reports prepared for the section 366.26 hearing and testimony at the hearing disclosed no evidence to support this finding. Regardless of this finding, there was substantial evidence to support the juvenile courts conclusion that the sibling relationship exception did not apply.