In re Rachael W.
Filed 4/18/13 In re Rachael W. CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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opinion has not been certified for publication or ordered published for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
SECOND APPELLATE
DISTRICT
DIVISION SIX
In
re RACHAEL W., A Person Coming Under the Juvenile Court Law.
2d Juv. No. B245040
(Super. Ct.
No. JV45420)
(San Luis Obispo
County)
SAN
LUIS OBISPO DEPARTMENT OF SOCIAL SERVICES,
Plaintiff and Respondent,
v.
B.
W.,
Defendant and Appellant.
B. W. appeals from an
order terminating his parental rights
to Rachael W. and freeing Rachael for adoption.
(Welf. & Inst. Code, § 366.26.)
to comply with the Indian Child Welfare
Act (ICWA; 25 U.S.C. § 1901 et seq.)
and asserts that the parent-child/sibling relationship exception precludes
Rachael's adoption. (§§ 366.26,
subd. (c)(1)(B)(i) &(v).) We affirm.
Facts
and Procedural History
In March 2010, police
found Rachael and her brothers living in a car with their father,
appellant. Rachael's youngest brother,
Daniel, was unconscious, had open sores
(scabies and eczema), and was transported to the hospital for treatment. Rachael told authorities that the family
spent nights outside a Food4Less store and used the store bathroom.
On March 23, 2010,
Obispo County Department of Social Services, Child Welfare Services (CWS) filed a
protect Rachael (age 8) and her brothers Ryan (age 10), Robert (age 7), and
Daniel (age 6). (§ 300, subds. (b) &
(j).) The petition referred to a prior
dependency proceeding in which appellant failed to protect the children from an
uncle. The petition stated that the biological
mother's parental rights were terminated in a Los
Angeles County
dependency proceeding with respect to Rachael's half-sister. Appellant assumed custody of Rachael and the
boys in 2007 after mother abandoned them.
Appellant submitted on
jurisdiction and disposition on May
26, 2010. The boys were
placed in a Paso Robles foster home and Rachael was placed in another
home. Rachael was struggling in school
and received counseling for behavioral and emotional problems. CWS reported that appellant had difficulty
meeting his own basic needs and lacked the ability to provide for the
children.
At the 12 month review
hearing (March 16, 2011), appellant was still living in his car and had a new girlfriend who had given birth
to his child. Appellant said that he and
the girlfriend "are going to get a place for the boys and she will be
their mom." Rachael feared she
would be homeless again if she reunited with appellant.
At the 18 month review
hearing, the trial court continued services so that appellant could move to a
larger home. Appellant was unemployed
and lived in a small motel room with bunk beds for the boys. Appellant's girlfriend (Lila M.) was pregnant
with his second child but not authorized to care for Rachael or the boys due to
a prior child welfare history.
At the 24 month review
hearing, CWS recommended that services be terminated. Appellant had quit working and was living in
a motel room with the boys and some dogs.
A Court Appointed Special Advocate (CASA) reported that the boys were
going to school dirty and smelled of urine from bed wetting. Rachael complained about her visits. Appellant's motel room was filthy, there was
feces smeared on the bathroom walls and toilet,
and Rachael saw appellant show pictures of topless women to the
boys.
The CASA worker reported
that "[a]fter 24 months in the current Dependency case and 8 placements,
Rachael is ready for something better than waiting; waiting for a mother who
has abandoned her . . . ; waiting for her father to do the few things that the
DSS says he must do to get her back; [and] waiting for a secure, permanent
placement with someone who can understand her." Rachael loved her brothers but was sure that
appellant could not meet her needs or provide a safe home. Appellant planned to move to the paternal
grandmother's house which was a concern.
The grandmother disliked Rachael and blamed her for the dependency
proceeding. An uncle planned to live in
the house despite unresolved reports about the uncle's past behavior with
children. Rachael feared the uncle and
was sure appellant would be homeless again.
The trial court
terminated services as to Rachael and dismissed the petitions with respect to
Rachael's brothers who were living with appellant and the uncle at
grandmother's house. At the 366.26
hearing, it was uncontroverted that Rachael wanted to be adopted. The social
worker reported that Rachael is a "bright, positive, communicative, and
respectful girl who wants desperately to have a 'normal' life and to be
adopted." The trial court found
that Rachael was adoptable and concluded that the parent-child/sibling
relationship exceptions did not preclude adoption.
ICWA
Appellant
argues that CWS failed to give proper ICWA notice. (§ 224.3, subd. (d); In re Alice M. (2008) 161 Cal.App.4th 1189, 1200-1201.) Before the detention hearing, appellant said
the children may be members of the “Blackfoot†or Cherokee tribe because his
deceased father and grandfather were members of the Cherokee tribe.
Based
on the information provided, CWS served an ICWA-030 notice on the Blackfeet
tribe, three Cherokee tribes, and the U.S. Department of Interior, Bureau of
Indian Affairs. Each tribe responded in
writing that the children were not members or eligible to be a members of the
tribe.
harmless where, as here, the tribe receives notice and determines that the
child is not registered or eligible to register as a member of the tribe. (In re E.W. (2009) 170 Cal.App.4th
396, 402-403.)
Appellant
complains that CWS did not ask extended family members about Rachael's Indian heritage but there was
no prejudice. (See e.g., In re I.W. (2009)
180 Cal.App.4th 1517, 1531-1532.) Our
courts have recognized that technical compliance with the ICWA notice
requirements may not be required where there has been substantial
compliance. (Id., at p. 1531.) " 'Parents unable to reunite with their
children have already caused the children serious harm; the rules do not permit
them to cause additional unwarranted delay and hardship, without any showing
whatsoever that the interest protected by the ICWA are implicated in any
way.' [Citation.]" (
The
jurisdiction/disposition minute order states that “"County Counsel makes
an offer of proof as to ICWA, counsel stipulate to accept offer of proof and
the Court signs ICWA orders on the record." Appellant did not object when the trial court
found that CWS had complied with the ICWA notice requirements. Nor did appellant object to an April 2010
letter from the Bureau of Indian Affairs that "county already has provided
an appropriate notice to the tribe or tribes."
Appellant
claims that CWS has an ongoing duty to inquire but "ICWA does not require
further inquiry based on mere supposition.
[Citation.]" (In re K.M. (2009) 172 Cal.App.4th 115,
119.) Appellant's concerns about the
scope of the ICWA investigation is moot given that each tribe has determined
that Rachael is not an Indian child or eligible to be a tribe member. (§ 224.3, subd. (e)(1); In re William K. (2008)
161 Cal.App.4th 1, 12.) " 'A
tribe's determination that the child is or is not a member or eligible for
membership in the tribe is conclusive.'
[Citation.]" (Alicia B.
Superior Court (2004) 116 Cal.App.4th 856, 865. )
Beneficial
Relationship Exception
Appellant
argues that the parent-child/sibling relationship exception precludes Rachael's
adoption. (§ 366.26, subd.
(c)(1)(B)(i) & (v).) In determining
whether the exception applies, the trial "court balances the strength and
quality of the natural parent/child relationship in a tenuous placement against
the security and the sense of belonging a new family would confer. If severing the natural parent/child
relationship would deprive the child of a substantial, positive emotional
attachment such that the child would be greatly harmed, the preference for
adoption is overcome and the natural parents are not terminated. (In re Autumn H. (1994) 27 Cal.App.4th
567, 575.)
The
sibling relationship exception is more limited and " 'focuses exclusively
on the benefits and burdens to the adoptive child [i.e., Rachael], not the
other siblings.' " (In re Celine
R. (2003) 31 Cal.4th 45, 54.)
"Reflecting the Legislature's 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.]" (Id., at p. 61.)
Rachael
has lived in foster homes more than three years and wants to be adopted. Rachael told the CASA worker it would be
"no big deal" if she did not
see appellant and said that she would
like occasional visits but "not something set up every month." Stacy Willis, an expert in adoptions,
testified that adoption would provide Rachael the stability and permanency that
she so badly needs. Rachael's therapist
agreed that adoption would benefit Rachael even if visitations were less. Rachael wants to be adopted by her
prospective adoptive mother who is committed to providing a loving home and is
open to family visits if it is in Rachael's best interests.
The
trial court reasonably concluded that the benefits of adoption outweigh the
benefit of maintaining a sibling relationship with her brothers or a
parent/child relationship with appellant.
"A biological parent who has failed to reunify with an adoptable
child may not derail an adoption merely by showing the child would derive some
benefit from continuing a relationship maintained during periods of visitation
with the parent [or sibling]." (In
re Angel B. (2002) 97 Cal.App.4th 454, 466.) The judgment is affirmed
NOT
TO BE PUBLISHED.
YEGAN,
J.
We concur:
GILBERT, P.J.
PERREN, J.
Linda
D. Hurst, Judge
Superior
Court County of San Luis Obispo
______________________________
John L. Dodd, under
appointment by the Court of Appeal, for Appellant.
Rita L. Neal, County
Counsel, County of San Luis Obispo and Leslie H. Kraut, Deputy County Counsel,
for Respondent.
name="_ftn1" title="">[1] All statutory references are to the Welfare
and Institutions Code unless otherwise stated.
name="_ftn2" title="">[2] Appellant signed an ICWA-020 form stating, under penalty of perjury,
that his Indian ancestry was with the "Blackfoot" tribe. This was at odds with a 2006 dependency case
in which appellant stated that he did not have Native American Heritage.
