In re T.B. CA3 ( 2013 )

Filed 11/6/13 In re T.B. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
(Butte)
----
In re T.B. et al., Persons Coming Under the Juvenile
Court Law.
BUTTE COUNTY DEPARTMENT OF C072587
EMPLOYMENT AND SOCIAL SERVICES,
(Super. Ct. Nos. J35301,
Plaintiff and Respondent, J36046)
v.
P.P. et al.,
Defendants and Appellants.
P.P., the mother of the minors T.B. and P.H., and T.B.’s father J.B, appeal from
the juvenile court’s orders terminating parental rights and denying mother’s petition for
modification. (Welf. & Inst. Code, §§ 395, 388, 366.26; unless otherwise stated,
statutory references that follow are to the Welfare and Institutions Code.) Mother
contends the juvenile court erred in not finding the sibling relationship exception to
adoption. Father contends there was a failure to comply with the notice requirements of
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the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) Father and mother
join each others arguments. We affirm the orders of the juvenile court
FACTS AND PROCEEDINGS
In May 2010, three-year-old T.B. was placed in protective custody after mother
left her with people who did not know T.B. or her parents. Mother admitted abusing the
drug Dilaudid and testing positive for methamphetamine. Later that month, the Butte
County Department of Employment and Social Services (the Department) filed a
dependency petition (§ 300) alleging T.B. was at substantial risk of harm due to domestic
violence between mother and her boyfriend, mother’s drug use, mother leaving T.B. with
unrelated adults, and father’s incarceration.
The minor was detained at a May 2010 detention hearing.
The juvenile court inquired into the minor’s possible Indian heritage at the
detention hearing. Mother told the juvenile court she had no Indian heritage, and did not
know if father had any. The paternal grandmother told the juvenile court the paternal
grandfather “claims” he has Indian heritage, “but I’m not sure.” He lived in Alaska, and
the paternal grandmother did not know what type of Indian ancestry he claimed to have.
Asked if she could provide contact information for the paternal grandfather, the paternal
grandmother replied, “I can try. It will be through my daughter, but I can.”
In a June 2010 disposition report, the Department said mother and father moved
from Alaska to California in 2009. They had two children, T.B., and six-year-old B.B.
Father moved back to Alaska with B.B. Father was subsequently incarcerated, and B.B.
was placed with relatives in Alaska who would not return him to mother.
The juvenile court sustained the petition in May 2010 and ordered reunification
services for mother in June 2010.
The Department sent ICWA notices to the Secretary of the Interior, the Bureau of
Indian Affairs, and the three Cherokee tribes. The notice included information about the
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parents and paternal grandmother, but no information regarding the paternal grandfather.
In June 2010, the Cherokee Nation sent a letter stating T.B. was not eligible for
membership in the tribe. The letter listed mother, father, T.B., and the paternal
grandmother as the persons through whom potential tribal membership was traced. In
July 2010, the Eastern Band of Cherokee Indians sent a letter stating T.B. was not eligible
for membership based on the information provided by the Department.
The juvenile court found the ICWA did not apply to the minor’s case at an August
2010 hearing.
The Department filed a petition for modification (§ 388) in October 2010,
requesting T.B.’s return to mother with family maintenance services after mother
completed an inpatient substance abuse program and actively participated in her services.
The juvenile court granted the petition in November 2010.
T.B.’s half sister P.H. was born in August 2010. T.B. lived with mother, mother’s
boyfriend R.H. and P.H. Her brother B.B. moved in with the family in December 2010.
The Department filed a supplemental petition (§ 387) on behalf of T.B. in
September 2011 alleging mother failed to arrange for adequate shelter for T.B. after
telling the Department she would be incarcerated for one to six months. According to the
detention report, mother did not fully participate in services, failed a drug test three
separate times, and tested positive for opiates and oxycotin. Father remained in Alaska,
where he had pending felony charges. T.B. was detained by the juvenile court later that
month.
The Department also filed a dependency petition (§ 300) for P.H. alleging similar
grounds as in T.B.’s section 387 petition and her father’s incarceration. The juvenile
court detained P.H. a few days later. After P.H.’s father denied having Indian heritage,
the juvenile court found the ICWA did not apply to her.
The juvenile court sustained the petitions in October 2011.
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A December 2011 disposition report related T.B.’s wish to be placed with her
brother B.B. and her paternal grandmother. She consistently asked when she was going
to get to live with them. T.B. and P.H. were placed in the same foster home and share a
strong bond with each other. The Department recommended denying reunification
services for the parents.
Father’s first appearance before the juvenile court was by telephone in February
2012. Regarding his possible Indian ancestry, father told the juvenile court: “Only thing
I do know is that I have a little bit of Indian, like Cherokee Indian, a quarter on my dad’s
side. They are going to send me what they call a background, like a family history
brochure thing so I can fill it out and call up my family, have them help me fill it out and
send it back to the courts.”
Asked to clarify his statement, father replied, “Alls I know, like I said, is I know I
am half Italian, and I have German, and a quarter Indian.” Father said the Cherokee was
from his father’s side of the family. Asked if anyone is a member of a tribe, father said,
“I don’t think so. I don’t think that would fall under, do you know what I mean? I am
not positive on that, but I don’t think so. I do believe I have done a questionnaire on that
once already, and determined it wouldn’t fall. I wouldn’t go under that status of the
native thing, you know, of the Indian tribe thing.”
Based on the information before it, the juvenile court reconfirmed its prior ruling
that the ICWA did not apply.
Following a contested dispositional hearing, the juvenile court denied services and
set a section 366.26 hearing.
In June 2012, mother filed section 388 petitions to return T.B. and P.H. with
family maintenance services.
The June 2012 section 366.26 report said T.B. had six placements and P.H. four
since during the dependency. They were in the same foster home since February 2012.
They were thriving there, formed a strong bond with the family, and the foster parents
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were “very committed” to adopting them. The family gave “great thought” over the
possibility of contact with family members, including B.B., after adoption. They were
definitely open to post-adoption contact.
Mother maintained visitation and brought B.B to many of the visits. However,
B.B. did not go on as many visits in the last two months before the report.
The report also noted the juvenile court sustained a nondetained petition with
family maintenance as to B.B. in March 2012. B.B. was later detained and placed in
foster care. He is not a party to this appeal.
An adoptability assessment was filed by the California Department of Social
Services (CDSS). T.B. and P.H. had strong attachments to the potential adoptive family.
Having been separated for only six days, T.B. and P.H. enjoyed “a significant, healthy,
mutually beneficial sibling relationship” and should remain together.
The reporter observed a visit between T.B., P.H., B.B., and mother. The observer
saw no “direct interactions” between T.B., P.H., and B.B. The children greeted each
other when directed to do so. P.H. competed for mother’s attention and the snacks she
provided. T.B. was quiet and appeared withdrawn. T.B. and P.H. reportedly do not ask
about B.B., and did not show distress when he did not attend visits.
The reporter concluded the possible interference with the sibling relationship
caused by terminating parental rights would not be detrimental when compared to the
benefit of the permanence gained by adoption. CDSS accordingly recommended
terminating parental rights.
Mother filed a bonding study written by psychologist Dr. Claire Fields. Dr. Fields
spent over three-and-one-half hours observing T.B., P.H., and B.B. interact each other,
their grandparents, mother, and three social workers. She found the children “seemingly
happy to be together.” T.B. and B.B. “seem to read one another’s emotional state.” As
an example, “while engrossed in a coloring project in opposite ends of the room, when
[they] looked up simultaneously caught each other’s eyes and smiled before going back
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to work on their project.” Looking at the social worker’s services logs, Dr. Fields found
T.B. and B.B. spent a majority of their visits together and were happy to see each other.
Both children were also very protective of their little sister P.H.
Dr. Fields concluded that the three children had “a strong sibling bond.”
Separation of the children would be detrimental, especially for T.B. and B.B.
Dr. Fields testified about her bonding study at the contested hearing. She
reiterated her conclusion that there was a strong bond between the three children.
Although T.B. and P.H. lived in the same foster home, living apart from B.B. was a
tremendous strain on the sibling relationship as B.B. and T.B. would feel safer if they
lived together. Frequent contact was needed to maintain the sibling bond. It was not
unusual that detriment from the separation was not yet apparent, as the trauma from the
loss normally unfolds in subsequent relationships the child has in elementary school and
high school.
Mother testified that B.B. and T.B. wanted to go with each other when visits are
over. When she arrived without B.B., T.B. always asked where was her brother.
Father absolutely believed B.B. and T.B. were bonded to each other. They always
looked out for and were concerned for each other.
Filippo Pizzuto was the section 366.26 worker in T.B.’s and P.H.’s case. He
thought the girls had a connection with B.B. The prospective adoptive parents were
willing to support continued contact with B.B., but nothing was written out or formally
agreed upon.
The adoptions social worker testified that T.B. does not ask the foster parents for
contact with B.B. or ask for him.
The juvenile court denied mother’s section 388 request and terminated parental
rights.
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DISCUSSION
I
ICWA Notice
Father contends there was a failure to comply with the notice and inquiry
provisions of the ICWA.
Congress passed the ICWA “to promote the stability and security of Indian tribes
and families by establishing minimum standards for removal of Indian children from their
families and placement of such children ‘in foster or adoptive homes which will reflect
the unique values of Indian culture . . . .’ ” (In re Levi U. (2000) 78 Cal.App.4th 191,
195; 25 U.S.C. § 1902.)
A social worker has “an affirmative and continuing duty to inquire whether a child
[in a section 300 proceeding] is or may be an Indian child . . . .” (§ 224.3, subd. (a).)
Furthermore, if the social worker “has reason to know that an Indian child is involved,
the social worker . . . is required to make further inquiry regarding the possible Indian
status of the child, and to do so as soon as practicable, by interviewing the parents, Indian
custodian, and extended family members to gather the information” required to be
provided in the ICWA notice. (§ 224.3, subd. (c).)
The ICWA also includes a provision for notice to the child’s tribe in any
involuntary state court proceeding in which “the court knows or has reason to know that
an Indian child is involved . . . .” (25 U.S.C. § 1912(a).) The Indian status of a child
need not be certain or conclusive to trigger the ICWA’s notice requirements. (In re
Desiree F. (2000) 83 Cal.App.4th 460, 471.) Nonetheless, some information provided by
a parent can be “too vague and speculative to give the juvenile court any reason to
believe the minors might be Indian children.” (In re O.K. (2003) 106 Cal.App.4th 152,
157.) In those cases, notice is not triggered. (Ibid.)
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Father’s claim is based on the failure to include any information on the paternal
grandfather in the notices sent to the relevant tribes and agencies. He notes the paternal
grandmother said T.B. might have possible Indian heritage through the paternal
grandfather. Father asserts the juvenile court should have asked the paternal grandmother
for father’s name or birth date, and the failure of the juvenile court or the Department to
ask this question of the paternal grandmother fatally compromised the investigation into
T.B.’s possible Indian heritage, thus rendering the notices inadequate.
The ICWA does not mandate a particular form of investigating a child’s possible
Indian heritage. The Department and the juvenile court were not required to “cast about”
for family history information. (In re Levi U., supra,78 Cal.App.4th at p. 199.) Instead,
the ICWA requires a reasonable investigation into a child’s possible Indian heritage.
Here, the paternal grandmother told the court she would provide additional information
about the paternal grandfather and the claimed Indian heritage through him if she could.
There is no evidence she made good on her promise. Father likewise told the juvenile
court he would provide additional information about the Indian heritage claimed through
the paternal grandfather, but, like his mother, did not do so. If a relative refuses to give
additional information, the duty to inquire ends. (In re K.M. (2009) 172 Cal.App.4th 115,
119.)
The Department and the juvenile court could reasonably take the father and
paternal grandmother at their word when they promised to give more information about
the paternal grandfather. The ICWA does not require an agency or juvenile court to ask
additional questions in anticipation of a relative’s breach of a promise to provide
additional information. Since the notices contained all the information given to the
Department, the ICWA’s duties of inquiry and notice were satisfied.
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II
The Sibling Exception to Adoption
Mother contends the juvenile court erred in declining to apply the sibling
exception to adoption.
At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ ‘possible alternative permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental
rights absent circumstances under which it would be detrimental to the child. [Citation.]”
(In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited
circumstances which permit the court to find a “compelling reason for determining that
termination [of parental rights] 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.)
Termination of parental rights is detrimental to the child when “[t]here would be
substantial interference with a child’s 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 child’s best interest, including the child’s long-term emotional interest,
as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd.
(c)(1)(B)(v).)
There is a “heavy burden” on the parent opposing adoption under the sibling
exception. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) “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
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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 authors of the legislation adding the sibling exception envisioned that its
applicability would “ ‘likely be rare.’ [Citation.]” (In re L.Y.L., supra, 101 Cal.App.4th
at p. 950.) This language has been interpreted to mean “that the child’s relationship with
his or her siblings would rarely be sufficiently strong to outweigh the benefits of
adoption.” (Ibid.)
The evidence before the juvenile court did not establish the sibling exception.
While the expert said separation from their brother would be detrimental to the minors,
she did not recommend against adoption. In fact, asked if T.B. and P.H. should be
removed from the prospective adoptive family to be reunited with B.B., the expert
testified: “If the children cannot go back to their biological family and if the home is a
good home and they are attached to the family, then it would probably be detrimental to
move them to another placement.” The expert admitted the children were currently
showing no harm from separation, and her finding of detriment was based on the minors’
future harm from being separated from their brother. Asked if the idea that T.B. suffered
loss from separation from B.B. was speculation, the expert admitted, “Yes. Based on
years and years of research data.” Asked as a follow up, “[f]or which you need more
research, more time, and more data in this particular case,” the expert replied, “[y]es.”
The minors showed no immediate harm during their extended separation from
their brother. The speculative evidence of long-term detriment does not come close to
satisfying the heavy burden of establishing the sibling exception to adoption.
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DISPOSITION
The juvenile court’s orders are affirmed.
HULL , J.
We concur:
BLEASE , Acting P. J.
MURRAY , J.
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