In re T.G.

Filed 1/19/10 In re T.G. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

R.R. (mother) appeals from orders of the juvenile court terminating parental rights to her son J.R. and her daughter T.G. and selecting adoption as the permanent plan for both children. (Welf. & Inst. Code, 366.26.)[1] On appeal, mother claims that the orders must be reversed because the court did not comply with the Indian Child Welfare Act. (25 U.S.C. 1901 et seq., 224 et seq., hereafter ICWA.) Mother also argues that the court erred in terminating her parental rights to T.G. because the order will result in T.G.s losing her relationship with her full brother R.G. We conclude that the court erred in failing to comply with the ICWA in a timely manner but that the errors do not warrant reversal. We further conclude that the evidence supports the courts implied finding that the benefits of adoption outweighed the risk that T.G.s relationship with R.G. could be lost. Accordingly, we affirm the orders.

I.                   Factual and Procedural Background

Mother has six children, all of whom have been removed from her custody.[2] In this case, the juvenile court consolidated dependency proceedings involving three of her children, J.R., T.G., and R.G. Following a contested selection and implementation hearing involving all three children the court terminated parental rights to J.R. and T.G. and selected adoption as their permanent placement plan. As to R.G., the court ordered a legal guardianship. This appeal concerns only the termination orders pertaining to J.R. and T.G.

J.R., who is the youngest of mothers six children, was taken into protective custody shortly after his birth on February 16, 2007, because mother, who has a developmental disability, had been unable to provide appropriate care for her other children. T.G. was taken into protective custody on February 14, 2007, two days before J.R. was born. T.G. was six years old at the time and had been cared for by a relative since she was two. The relative had not enrolled her in school and had failed to protect her from sexual molestation. T.G.s full brother R.G., who was a year older than T.G., was already in a foster home when T.G. and J.R. were detained. The Santa Clara County Department of Family and Childrens Services (Department) placed J.R., the newborn, in the foster home with R.G. T.G. was placed separately. By September 2007, reunification services for mother had either been terminated or waived. The father of T.G. and R.G. had waived services. J.R.s father received reunification services until March 2008, when services for him were terminated.

By January 2008, T.G. was in a foster home with a nonrelative extended family member who wanted to adopt her. J.R. had continued in a separate foster home along with R.G. J.R. had been in the home since he was a day old and was now bonded to his caretaker who wished to adopt him. R.G. had consistently stated that he wanted to live with his sister T.G. Accordingly, the social worker requested a continuance of the selection and implementation hearing ( 366.26) in his case so that the adults involved could discuss the possibility of placing R.G. and T.G. together. Two family members stepped up and requested that the children be placed with them, but neither followed through.

Ultimately, the social worker concluded that it would not be in the childrens best interest for T.G. and R.G. to be placed together because they have emotional and behavioral needs that would best be met in separate placements. The social worker reported in July 2008 that R.G. was thriving in his placement. R.G. was very bonded to his caretaker who was willing to be appointed his legal guardian. R.G. was also very close to J.R., who continued to live in the same home with him. T.G. was thriving in her separate placement.

After various delays occasioned by the appointment of new counsel for the children and mediation on the question of visitation, the consolidated matters were set for a contested section 366.26 hearing and a hearing on mothers section 388 petition to change J.R.s placement. The matters were heard on April 9, 2009. The juvenile court denied mothers section 388 petition and adopted the Departments recommendations as to J.R. and T.G., terminating mothers parental rights and ordering a permanent plan of adoption for both children. The court found by clear and convincing evidence that it was likely the children would be adopted. The court ordered legal guardianship for R.G. and ordered sibling contact between T.G. and R.G.

Also on April 9, 2009, the juvenile court found that ICWA did not apply to J.R. The court found that J.R.s father had stated that he believed he had Cherokee ancestry, the paternal grandmother had provided genealogical information, notice to the tribes complied with ICWA requirements, and the tribes had responded that J.R. was not eligible for membership.

On May 18, 2009, the Department asked the court to make a finding that ICWA did not apply to T.G. The Department had obtained information from T.G.s father on May 13, 2009, in which he stated that T.G. did not have Indian ancestry. Since mother did not claim any Indian heritage, the juvenile court found, on May 18, 2009, after having terminated parental rights, that ICWA did not apply in T.G.s case.

II.                Discussion

A.                 ICWA

Mother first argues that the juvenile court did not comply with the requirements of the ICWA in that it did not promptly inquire about the childrens possible Indian ancestry and that it did not make a finding that the ICWA did not apply until long after the children had been taken into custody. We conclude that the courts failure to comply with the ICWA does not warrant reversal.

The ICWA was enacted to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. 1902; see, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) An Indian child, within the meaning of the ICWA, is a child who is either a member of an Indian tribe or is eligible for membership and is the biological child of a member. (25 U.S.C. 1903(4); 224.1, subd. (a).) Where a state court knows or has reason to know that an Indian child is involved in a dependency proceeding, statutorily prescribed notice must be given to all tribes of which the child may be a member or eligible for membership. (25 U.S.C. 1912(a); 224.2, subd. (a)(3); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) Both the court and the Department have an affirmative and continuing duty to inquire whether a child for whom a dependency petition has been filed is or may be an Indian child. ( 224.3, subd. (a); In re Nikki R. (2003) 106 Cal.App.4th 844, 849; In re N.E. (2008) 160 Cal.App.4th 766, 769.) The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (In re Samuel P., supra, 99 Cal.App.4th at p. 1265.)

In the present case, Mother does not claim any Indian heritage. The reports pertaining to T.G.s father were conflicting. One early report indicated that he had Cherokee heritage and that the Department had notified the tribes and the information they returned indicated that he was not a registered member of the tribe. The notices and responses, however, are not in the record. It was not until after the court terminated parental rights that the Department obtained T.G.s fathers written confirmation that he has no Indian heritage. It was error to delay this inquiry to such a late date but, given the fathers ultimate response, the error was not prejudicial.

As to J.R., his father claimed Cherokee heritage and the Department sent timely notices to the Bureau of Indian Affairs and to the three Cherokee tribes. As mother concedes, the record demonstrates that all three tribes responded that J.R. is not eligible for tribal membership. The only error mother asserts is that the trial court did not make an express finding that the Department had complied with the ICWA until the case was nearly concluded. Since the required notices and responses were in the record when the juvenile court proceeded with the case, the court impliedly found that the ICWA did not apply. Even if the failure to make a timely express finding was error, the error was not prejudicial.

Mother does not argue, as to either J.R. or T.G., that the Department failed to provide the notice required by the ICWA. Indeed, in T.G.s case, no notice was required because neither of her biological parents claim Indian heritage. In J.R.s case, the tribes received the required notice and determined that J.R. is not an Indian child. Thus, we are not confronted with a situation where the procedural irregularities foreclosed participation by a tribe, which would require reversal. (In re Samuel P., supra, 99 Cal.App.4th at p. 1267.) Rather, reversing the courts orders would be an exercise in futility since there is no doubt what the ultimate results will be. Furthermore, while reversal would not advance the purposes of the ICWA it would delay giving the children permanent homes. They are entitled to permanence and stability as soon as possible. Accordingly, we conclude that the juvenile courts failure to comply with the ICWAs procedural requirements under the circumstances of this case does not warrant reversal. (In re A.B. (2008) 164 Cal.App.4th 832, 843.)

B.                 The Sibling Relationship Exception

Mother also argues that the juvenile court erred in terminating parental rights to T.G. because in so doing the court severed the relationship between T.G. and R.G. We reject the argument.

The juvenile court has the duty to provide stable, permanent homes for all children who are dependent children of the court. ( 366.26, subd. (b).) Once the juvenile court determines by clear and convincing evidence that it is likely a child will be adopted, the court shall terminate parental rights and order the child placed for adoption (id., subd. (c), italics added), unless the court finds a compelling reason for determining that termination would be detrimental to the child under one or more specific exceptions. (Id., subd. (c)(1)(B).) One such exception is where [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. (Id., subd. (c)(1)(B)(v).) To establish this exception the parent must show: (1) the existence of a significant sibling relationship; (2) that termination of parental rights would substantially interfere with that relationship; and (3) that it would be detrimental to the child being adopted if the relationship ended. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 952, and see In re Celine R. (2003) 31 Cal.4th 45, 54.) If the parent makes this showing then the juvenile court balances the benefit to the child of continuing the sibling relationship against the benefit of adoption. (In re L. Y. L., supra, at pp. 952-953.) Even if a sibling relationship exists that is so strong that its severance would cause the child detriment, the court may still conclude that the detriment is outweighed by the benefit of adoption. (Ibid.)

The record indicates that the caregivers for both T.G. and R.G. recognized the importance of their maintaining a relationship between the two siblings. Further, as authorized by section 366.29, the juvenile court made an order requiring postadoption sibling visits. Under section 366.29, subdivision (a), such an order is permitted so long as the adoptive parent consents. Only if the adoptive parent determines that sibling contact would be detrimental to the child may the visits be terminated, in which case the adoptive parent must give notice to the court within 10 days of terminating the visits. ( 366.29, subd. (b).) Given the caretakers understanding of the importance of visits between T.G. and R.G., T.G.s adoption does not necessarily terminate her actual relationship with R.G. But even if there were no postadoption contact between the two, there is substantial evidence to support the finding that the benefits of adoption to T.G. outweighed the detriment she would suffer by severance of her relationship with R.G.

R.G. had lived with mother for the first six years of his life while T.G. had been left with other caretakers since she was two. That is, the two lived together for only two years and during most of that time T.G. was an infant. The social worker described the relationship between T.G. and R.G. as a minimal sibling relationship. T.G. was developmentally on target and had adapted well to her placement, was bonded with the prospective adoptive parent and to the other children in the home. She had a healthy, secure and attached relationship with her caretakers and [was] excited about the possibility of permanency in the home. As of November 2008, she had graduated from therapy because she had made enough progress that therapy was no longer necessary. She had resolved any prior behavioral or emotional concerns. Her prospective adoptive family included other children ages 17, 13, and seven, who considered T.G. to be a sister to them. T.G. told the social worker that she loved her prospective adoptive mother and wanted to stay with her. The social worker concluded that removing T.G. from her current placement would be detrimental to her as she was attached to the prospective adoptive parent and to her adoptive siblings. This is substantial evidence to support the juvenile courts finding that the benefits of adoption for T.G. outweighed the risk of losing her relationship with R.G.

III.             Disposition

The orders of the juvenile court terminating parental rights to T.G. and J.R. are affirmed.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] All further unspecified statutory references are to the Welfare and Institutions Code.

[2] We have taken judicial notice of the record in mothers prior appeal pertaining to J.R. (In re J.R. (Jun. 6, 2008, H032294) [nonpub. opn.].)