In re S.D. CA5 ( 2022 )

Filed 8/29/22 In re S.D. CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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
FIFTH APPELLATE DISTRICT
In re S.D. et al., Persons Coming Under the
Juvenile Court Law.
FRESNO COUNTY DEPARTMENT OF F083933
SOCIAL SERVICES,
(Super. Ct. Nos. 20CEJ300303-1,
Plaintiff and Respondent, 20CEJ300303-2)
v.
OPINION
CASSIDY S. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of Fresno County. Todd Eilers,
Judge.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant Cassidy S.
Susan M. O’Brien, under appointment by the Court of Appeal, for Defendant and
Appellant Raymond D.
Daniel C. Cederborg, County Counsel, and Carlie M. Flaugher, Deputy County
Counsel, for Plaintiff and Respondent.
-ooOoo-
SEE CONCURRING OPINION
Cassidy S. (mother) and Raymond D. (father) appeal from the juvenile court’s
orders after the Welfare and Institutions Code section 366.261 hearing terminating their
parental rights to their two children, S.D. and Greyson D. Mother and father, joining in
each other’s arguments, argue the juvenile court erred when it found Greyson adoptable;
when it failed to find the sibling exception to adoption applied to termination of their
parental rights; and that the case must be remanded for a bonding study to assess the
sibling bond between the two children. Mother and father also argue that the Fresno
County Department of Social Services (department) failed to adequately address the issue
of whether the children were Indian children under the Indian Child Welfare Act
(ICWA). We find only ICWA error and remand for a limited purpose to address that
issue.
STATEMENT OF THE FACTS AND PROCEDURE
Referral
On October 1, 2020, a referral was generated to the department after mother
placed four-year-old S.D. and two-year-old Greyson with maternal grandfather, who was
no longer able to provide care for the children due to his medical conditions. The
whereabouts of mother was unknown. Mother had a history of substance abuse and
mental illness. Mother later informed the department that father was the biological father
of S.D., but that Greyson was the result of a rape by an unknown male.
The department filed a section 300 petition October 5, 2020, alleging S.D. and
Greyson were at risk of harm due to mother’s substance abuse problem and her inability
to care for and protect the children. The petition further alleged that father failed to
adequately supervise and protect S.D. due to his own unstable lifestyle and to protect her
from mother.
1 All further statutory references are to the Welfare and Institutions Code unless
otherwise stated.
2.
Detention
Mother was not present at the detention hearing held October 6, 2020. The
juvenile court detained both children and granted mother and father supervised visitation.
Father, who was present, stated orally that he may have Indian ancestry with the Choctaw
or Blackfoot tribes. The juvenile court ordered the department to send notice to any
applicable tribe or tribes and the Bureau of Indian Affairs (BIA). A jurisdiction and
disposition hearing was set for November 3, 2020.
Jurisdiction/Disposition
In its report dated November 3, 2020, the department recommended that mother
receive family reunification services and that father receive services for S.D. only. Father
was considered the presumed father of S.D. and remained the alleged father of Greyson.
The children were placed together in foster care.
In an ICWA update, the department wrote that mother had not been cooperative
with the department during interviews and had refused to answer questions. Father had
not made himself available to the department since the detention hearing to follow-up
regarding his possible Native American ancestry.
On November 5, 2020, ICWA notice was sent to the Blackfeet Tribe of Montana,
the Choctaw Nation of Oklahoma, the Jena Band of Choctaw Indians, and the Mississippi
Band of Choctaw, as well as the BIA. Responses from the Choctaw Nation of Oklahoma
and the Mississippi Band of Choctaw were filed November 30, 2020, indicating that the
children were not eligible for enrollment in those tribes.
Neither mother nor father was present at the jurisdiction/disposition hearing
December 1, 2020. The juvenile court found the allegations in the petition true and a
continuance was granted for disposition due to ICWA notice.
Both mother and father were present at the disposition hearing January 12, 2021.
The children were declared dependents of the court and removed from mother’s custody;
S.D. was removed from father’s custody. Mother was granted reunification services as to
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both children; father was granted services as to S.D. The ICWA was found not to apply.
A six-month review hearing was scheduled for July 6, 2021.
Six-Month Review
The report written in anticipation of the July 6, 2021, six-month hearing
recommended reunification services be terminated and a section 366.26 hearing be set.
S.D. was placed in a relative home, while Greyson was placed in foster care.
Mother and father had been inconsistent in maintaining contact with the
department and the children. Mother was dropped from visitation after three consecutive
no shows at the beginning of June 2021. The department filed a declaration of due
diligence for father on June 28, 2021.
Mother attended her domestic violence inventory assessment in March of 2021
and was recommended for the child abuse intervention program and batterer’s treatment
program. But she was dropped from parenting classes due to no shows, did not attend her
assessment for substance use disorders, did not enroll in random drug testing, and did not
attend her mental health assessment, despite the department’s efforts to reconnect her to
services.
Father had been referred for all ordered services twice during the review period,
but the referrals were closed due to lack of contact by father.
Mother was not present at the July 6, 2021, six-month review hearing. Father,
who was present, asked that the matter be set for a contested hearing, which was
scheduled for July 15, 2021.
At the July 15, 2021, contested hearing, only father was present. The juvenile
court terminated services as to both mother and father and a section 366.26 hearing was
set for October 28, 2021.
Section 388 Petition
On October 20, 2021, father filed a section 388 petition requesting the section
366.26 hearing be vacated and he be granted family reunification services.
4.
Section 366.26 Hearing
The report prepared in anticipation of the section 366.26 hearing recommended
adoption as the permanent plan for both children. S.D. remained in relative care and
Greyson was recently placed in a new foster home on October 1, 2021. The report stated
that both children were developing in an age appropriate manner and doing well. Both
were reported to be generally adoptable.
The report noted that Greyson’s third placement had been stable, but ended after
10 months because the caregiver needed to move out of state. The fourth placement for
Greyson was considering adoption. S.D.’s caregivers indicated a willingness to facilitate
contact between the siblings after adoption.
The report indicated that the juvenile court had found the ICWA inapplicable on
January 12, 2021, but also that mother had reported on October 1, 2021, that she was not
sure if she had Native American ancestry.
Both mother and father were present via Zoom at the scheduled section 366.26
hearing October 28, 2021. The juvenile court denied father’s section 388 petition.
The matter was set for a settlement conference hearing January 20, 2022, and
contested hearing February 3, 2022, as the parents were claiming a beneficial relationship
exception, a sibling bond, that could preclude adoption.
Request to Elevate Paternity Status for Father
On November 19, 2021, father requested the juvenile court calendar his request to
elevate his paternity status to presumed father of Greyson.
Father’s Second Section 388 Request
Father filed a second section 388 petition requesting again that the section 366.26
hearing be vacated and reunification services for father resume.
5.
Settlement Conference Hearing
At the January 20, 2022, hearing, the juvenile court granted father’s request to
elevate his paternity status to presumed father of Greyson. Father’s section 388 petition
was denied.
Contested Section 366.26 Hearing
The department filed an addendum report dated February 3, 2022, in which it was
noted that Greyson’s adoptive placement had given notice and he would need to move
from the placement. The caregiver family felt that they could not “connect” with him.
The report addressed the sibling relationship between S.D. and Greyson and noted
that they had at first been placed together, but were separated due to their interaction with
each other. Greyson then had several placements and while he needed to be moved
again, S.D.’s placement was not open to having him as well. The department opined that
it would be detrimental to remove S.D. from her current placement only to keep the
siblings together, as S.D. was thriving and stable in her current placement.
Mother was not present at the contested section 366.26 hearing held February 3,
2022. Mother’s counsel argued that the section 366.26 report provided an inadequate
assessment regarding the adoptability of Greyson, and that the sibling exception to
adoption applied. Counsel called social worker Monica Ramirez, who testified that
Greyson was generally adoptable, due to his young age, lack of developmental delays,
and physical well-being. Greyson had had some undefined behavioral issues in two of
his placements. Ramirez clarified that her report should have used the word “few”
instead of “several” when indicating the number of placement changes due to Greyson’s
behavior. The social worker had observed eight visits between the parents and the
children, and the children appeared to leave without showing any emotional distress with
regard to their parents or each other.
Ramirez testified that, since Greyson’s most recent placement had stated they were
not willing to adopt him, another placement was being sought and the department already
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had eight families interested. As part of the approval process, the placements would be
asked about continuing sibling relationships. S.D.’s placement was not open to the idea
of guardianship. As such, if Greyson was to be placed with S.D., S.D.’s placement would
be disrupted and another placement would need to be found. According to the social
worker, it would be more detrimental to remove S.D. from her placement than to find a
new placement for her with Greyson.
The children were initially removed from mother’s custody when they were quite
young and had not been together for the past year, also contributing to Ramirez’s opinion
that the two did not have a substantial bond. Ramirez opined that separating the children
via adoption was not detrimental due to the benefits of adoption.
S.D., now six years old, testified, and when asked if there was anybody that she
did not live with now that she wished lived with her, she said her “auntie” and Greyson,
“But I don’t want to go with my dad.” S.D. testified that she was happy with her
caregiver, did not really want more visits with her dad, and liked visits with Greyson.
She would be sad if she no longer had visits with Greyson, because “we’re brothers and
sisters.” She would like to live in a home where Greyson was, but repeated several times
that she did not want to be with her dad.
Father testified that breaking up the children “wouldn’t be good for them.” Father
described the children’s as having a “strong connection” and that they enjoyed each
other’s company.
The department called Social Work Supervisor Abelky Montano, who testified she
had been in the assessment adoption unit for seven of her 22 years with the department.
Montano testified that she had no doubt that Greyson was adoptable. She also opined
that S.D. had a very strong bond with her caregivers, which would be detrimental if
broken. Montano testified that, while Greyson needed to be moved from his current
placement, which he had been in since October of 2021, he had had only minimal age-
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appropriate behavior issues. He had exhibited more aggressive behavior in the placement
in November of 2020, when he had been first placed with S.D.
At argument, the department submitted on the reports and, as to the sibling bond
exception, argued “there is nothing here that compels a finding of detriment from
adoption.” The department argued that Greyson’s behaviors did not rise to the level that
it would be a problem to find an adoptive home for him. The department argued further
that it would look for placement for Greyson that allowed for continued visitation, and
the evidence was that detriment would be “worse from disrupting [S.D.’s] placement.”
Counsel for the minors agreed that adoption was the best plan and that Greyson
would be easily adoptable, considering the number of interested parties. As for the
sibling bond exception, counsel for the minors argued that, while the children may want
to visit each other, they had not been raised in the same home and had not grown up
together or shared experiences. Counsel opined that it would be especially detrimental
for S.D. to have to give up her current placement, due to the bond she had with the
caregiver.
Mother’s counsel asked that the juvenile court not find Greyson adoptable, noting
he had five placements and was only three years old, and that the department failed to
address his “behavior problems.” Counsel argued that, because of Greyson’s placement
history, if parental rights were terminated, Greyson would end up a “legal orphan,” as no
one would want to adopt him. As for the sibling bond exception, counsel argued that the
department failed to do what it was required to do, namely make efforts to find a home
for the siblings together and to provide a meaningful description of the sibling
relationship. Counsel noted that the children call each other, share toys and pictures, and
that S.D. said she is sad not living with Greyson and that she loves him.
Mother’s counsel, noting that the children were separated just over a month into
their first foster care placement based on Greyson’s behavior issues, argued there was no
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evidence of any effort on the part of the department to reunite them or provide sibling
visitation.
Father’s counsel stated she would “echo and adopt” the arguments made by
mother’s counsel. Counsel further argued that the beneficial parent-child relationship
exception to adoption applied, citing father’s regular and consistent visitation with the
children “insomuch as he has been able to.”
The juvenile court stated that it understood the various arguments, and that it did
not necessarily disagree that some of the issues as to Greyson were created by the
department, but that “sometimes placements between siblings work out, and sometimes
placements don’t work out.” It found both children adoptable and found that the parent-
child relationship exception to adoption did not apply. After explanation, the juvenile
court also found that the sibling relationship exception to adoption did not apply, and it
terminated mother and father’s parental rights.
DISCUSSION
I. DID THE JUVENILE COURT ERR IN FINDING THE CHILDREN
ADOPTABLE?
Mother and father first challenge the sufficiency of the evidence supporting the
juvenile court’s adoptability finding for Greyson. We reject their challenge.
“The [juvenile] court was not required to find the children ‘generally’ or
‘specifically’ adoptable. [Citation.] It was required only to find by clear and convincing
evidence that the children were ‘likely’ to be adopted within a reasonable time ....” (In re
Mary C. (2020) 48 Cal.App.5th 793, 802; see § 366.26, subd. (c)(1).) When reviewing a
finding that a fact has been proven by clear and convincing evidence, we must determine
“whether the record as a whole contains substantial evidence from which a reasonable
fact finder could have found it highly probable” that the children were likely to be
adopted. (Conservatorship of O.B. (2020) 9 Cal.5th 989. 1011.)
9.
“ ‘The issue of adoptability ... focuses on the minor, e.g., whether the minor’s age,
physical condition, and emotional state make it difficult to find a person willing to adopt
the minor.’ ” (In re Zeth S. (2003) 31 Cal.4th 396, 406.) In determining adoptability, the
juvenile court considers the department’s adoption assessment report and any other
relevant evidence. (§§ 366.21, subd. (i)(l), 366.26, subd. (c)(1).)
Mother and father argue that the finding that Greyson was adoptable was not
supported by clear and convincing evidence. They point to the fact that Greyson was first
placed into a relative’s home for a month, but the relative requested his removal due to
his aggressive behavior. He also had behavioral issues with his second placement. His
subsequent 10-month placement was prepared to offer permanency to Greyson, but the
prospective adoptive family moved out-of-state, requiring Greyson to be placed into yet
another home. The fourth home Greyson was placed into initially indicated a willingness
to adopt but, within three months, decided they were not “connect[ing]” with Greyson
and asked that he be removed. According to mother and father, all of this indicates that
Greyson will likely not be adopted and will be left a legal orphan.
We find, however, that substantial evidence supports the juvenile court’s
adoptability finding. In finding the children adoptable, the juvenile court addressed each
child separately. It found S.D. adoptable, noting it was “clear from the testimony today
and what we were able to view while we were on the record of the interaction between
the care provider and [S.D.] The nurturing and love and affection was obvious.” As for
Greyson, the juvenile court noted his “disruptive behaviors,” which had been described
previously as “severe, but that was by a layperson,” were in contrast to his more recent
behaviors, which had been described as less severe and age appropriate. The juvenile
court also noted Greyson was a young age, and that notice of Greyson’s need for an
adoptive home “essentially went out two weeks ago and there [were] already nine
applications,” finding this “convincing evidence of adoptability.”
10.
We find no error on the part of the juvenile court in finding Greyson was likely to
be adopted.
II. DID THE JUVENILE COURT ERR WHEN IT FOUND THE SIBLING
RELATIONSHIP EXCEPTION TO ADOPTION DID NOT APPLY?
Mother and father contend the juvenile court erred in failing to apply the exception
to adoption based on avoiding interference with a sibling relationship. (§ 366.26, subd.
(c)(1)(B)(v).) We disagree.
There are only limited circumstances that 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).) One such circumstance is when termination of
parental rights would result in “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 party opposing adoption under the sibling
exception. (In re Daniel H. (2002) 99 Cal.App.4th 804, 813.) The authors of the
legislation envisioned that the applicability of this exception would “ ‘likely be rare.’ ”
(In re L. Y. L. (2002) 101 Cal.App.4th 942, 950.) This language from the legislative
history 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.)
“particularly when the proceedings concern young children whose needs for a competent,
caring, and stable parent are paramount.” (In re Valeria A. (2007) 152 Cal.App.4th 987,
1014.)
11.
“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.” (In re L. Y. L., supra, 101 Cal.App.4th at p. 952.) If the court
determines that the child has a significant sibling relationship and would suffer detriment
if that relationship were severed, the court then must weigh the benefit to the child of
continuing the relationship against “the benefit of legal permanence through adoption.”
(§ 366.26, subd. (c)(1)(B)(v); see In re L. Y. L., at pp. 952-953.) The sibling bond
exception is evaluated from the perspective of the child who is being considered for
adoption. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Unlike the beneficial parent-child
relationship exception, the juvenile court is permitted to consider the prospective
adoptive parent’s intent to maintain contact between the siblings. (In re Daisy D. (2006)
144 Cal.App.4th 287, 293; In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422.)
We do not substitute our judgment for that of the juvenile court as to what is in the
child’s best interest. (In re Caden C. (2021) 11 Cal.5th 614, 641; In re Zeth S., supra, 31
Cal.4th at p. 410.)
Mother and father argue that the juvenile court erred in finding the beneficial
sibling relationship exception to adoption did not apply because the evidence showed a
bond between S.D. and Greyson that outweighed the benefits to adoption. We disagree.
In addressing the issue of the sibling relationship exception to termination of
parental rights, the juvenile court stated it needed to address the nature and extent of the
relationship between S.D. and Greyson—“[w]hether they [were] raised in the same home,
whether they share significant common experiences, whether there is an existing and
close, strong bond, and is the ongoing contact in the best interest, including long-term
emotional interest as compared to the benefits of legal permanence through adoption.”
In doing so, the juvenile court stated it had considered all of the reports and the
testimony and highlighted “a few things.” It then stated that “watching the interaction
between S.D. and the care provider that if anything was detrimental, it would be severing
12.
that relationship,” and the department was trying to do what it could to “assist in
maintaining that relationship.” It also noted that social worker Ramirez had testified that
the children were doing better not being placed together, as Greyson did best without
additional children in the home.
The juvenile court also addressed the testimony of S.D., who stated that she was
happy after visits, and expressed that one of the reasons she was happy was because she
loved her care provider. The juvenile court did state that S.D. expressed a desire to see
Greyson more “ ‘[b]ecause he’s my brother, and we don’t get to see each other that
much.’ ” It also noted that S.D. did not want to live with her father. The juvenile court
then stated that it was clear from S.D.’s testimony that she was happy in her placement
and did not want to leave.
The juvenile court noted that S.D. and Greyson, who had initially been placed
together, had been separated since November of 2020, “due to Greyson’s behaviors,”
which included randomly biting others, including S.D. S.D. had said that she liked the
first placement but complained that Greyson fought with her. Since the two have been
separated, they have had visits, shared toys, colored together, but also did not show any
emotional distress at the end of those visits.
The juvenile court concluded:
“These two children have been apart for over a year. [S.D.] is thriving in
her placement, and Greyson appears to be doing better living in a single-
sibling household. They were both separated at a young age. When asked,
‘Are they raised in the same home when they were separated?’ they were
separated when Greyson was only two years old; [S.D.] was four at the
time. When asked ‘Do they share significant common experiences?’ the
Court cannot say they [were] significant experiences. It’s experiences of a
two-year-old and a four-year-old. They play together; they color together.
You can take two individuals of that age that are [not] siblings, and they
would share that same common experience. The Court is not of the opinion
that is a significant experience.
13.
“When considering whether it’s an existing and close, strong bond, do they
have a bond? Yes. They want to see each other; they want to call one
another. When the Court weighs that of ‘does the ongoing contact and the
best interest, including the long-term emotional interest … , as compared to
the benefit of the legal permanency of adoption—in weighing the evidence
before the Court, this Court is of the opinion it would do more damage than
good if it were to find that adoption was not the appropriate plan. [¶] … [¶]
“The court is of the opinion that the sibling exception to the adoption
burden has not been met.”
Mother and father contend that their case is similar to the facts in In re Naomi P.
(2005) 132 Cal.App.4th 808 (Naomi P.). The child in Naomi P. was placed in a legal
guardianship with a relative and had weekly visits with her siblings in her grandmother’s
home, where her siblings lived, sometimes spending the whole weekend with them. (Id.
at pp. 812, 820.) That guardianship was terminated when the relative guardian was
alleged to have neglected her own children. (Id. at p. 813.) After the child was moved to
the home of a family friend who wanted to adopt her, frequent visits with her siblings and
grandmother continued with some of those visits lasting several hours to the entire day.
(Id. at pp. 818-819.) At the section 366.26 hearing, the juvenile court found the sibling
relationship exception applied and ordered a permanent plan of legal guardianship, based
on the strength and importance of the children’s relationship with each other and the
court’s concerns about the foster mother’s willingness to maintain that contact. (Naomi
P., supra, at p. 821.) The Court of Appeal, applying a substantial evidence standard,
rejected a contention by the social services agency that the juvenile court should have
terminated parental rights. (Id. at p. 824.)
We find Naomi P. factually distinguishable. Here, while S.D. voiced a love for
Greyson and wished to visit him, she was most content in her placement with her
prospective adoptive parent. More significantly for our purposes, Naomi P. is
procedurally distinguishable because it involved a different burden of proof and standard
of review; the order under review in Naomi P. was that the sibling exception applied.
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(Naomi P., supra, 132 Cal.App.4th at p. 824.) That order was entitled to deference and
could only be reversed on appeal if the juvenile court abused its discretion or made a
factual finding unsupported by substantial evidence. (See In re Bailey J. (2010) 189
Cal.App.4th 1308, 1314-1315.) To say the juvenile court’s order was properly affirmed
based on a substantial evidence standard is not to say the juvenile court in Naomi P.
would have erred in finding there was insufficient evidence to support the sibling
relationship exception as a matter of law. Thus, Naomi P. does not support mother and
father’s claim the sibling exception compels reversal in the case before us.
We find no error on the part of the juvenile court in determining that the sibling
relationship exception to adoption did not apply.
III. MUST THE CASE BE REMANDED FOR A BONDING STUDY?
Mother and father also contend that, even if this Court declines to reverse based on
lack of substantial evidence supporting the sibling relationship exception to termination
of parental rights, we should reverse the order and remand with instructions to conduct a
new section 366.26 hearing with the benefit of a bonding study to assess the sibling
relationship exception. We find their request meritless.
In assessing the applicability of the parent-child benefit relationship exception
(another exception to termination of parental rights but not at issue here), courts have
found that any party may request a bonding study, and the court has discretion to order
one “to illuminate the intricacies of the parent-child bond so that the question of
detriment to the child may be fully explored.” (In re S.R. (2009) 173 Cal.App.4th 864,
869; In re Caden C., supra, 11 Cal.5th at p. 633, fn. 4 [“Trial courts should seriously
consider, where requested and appropriate, allowing for a bonding study or other relevant
expert testimony.”].)
Bonding studies are also relevant to the sibling benefit exception, especially when
young children who are less articulate are involved. (In re Jacob S. (2002) 104
Cal.App.4th 1011, 1018, disapproved of on other grounds by In re S.B. (2009) 46 Cal.4th
15.
529, 537, fn. 5.) “In a case where the strength of a bond between very young siblings is
difficult to determine because of the young age of the children involved, court-ordered
sibling bond studies may be appropriate. Such studies would be helpful—in some cases
might even be indispensable—in determining the applicability of section 366.26,
subdivision (c)(1)[(B)(v)].” (In re Jacob S., supra, at p. 1018.) However, “[t]here is no
requirement in statutory or case law that a court must secure a bonding study as a
condition precedent to” terminating parental rights. (In re Lorenzo C. (1997) 54
Cal.App.4th 1330, 1339.)
Here, neither mother nor father made a request for a bonding study. They have
therefore waived, for appellate purposes, their contention that the juvenile court should
have required a bonding study before terminating their parental rights. (In re Lorenzo C.,
supra, 54 Cal.App.4th at p. 1339.) Even had they made such a request, “The applicable
standard of review is whether, under all the evidence viewed in a light most favorable to
the juvenile court’s action, the juvenile court could have reasonably refrained from
ordering a bonding study.” (Id. at p. 1341.) But neither parent has shown that the
juvenile court’s failure to order one sua sponte was an abuse of discretion. As addressed
above, the juvenile court had substantial evidence from which to determine that the
sibling relationship exception to termination of parental rights did not exist, and we reject
mother and father’s claim that a bonding study is in order.
IV. DID THE DEPARTMENT FAIL TO ADEQUATELY ADDRESS
WHETHER THE CHILDREN WERE INDIAN CHILDREN UNDER ICWA?
Mother and father contend the juvenile court’s finding that ICWA did not apply
was not supported by substantial evidence because the record does not reflect sufficient
inquiry and notice by the department of paternal and maternal family members regarding
Native American ancestry. The department concedes the issue.
“[W]e review the juvenile court’s ICWA findings under the substantial evidence
test, which requires us to determine if reasonable, credible evidence of solid value
16.
supports the court’s order. [Citations.] We must uphold the court’s orders and findings if
any substantial evidence, contradicted or uncontradicted, supports them, and we resolve
all conflicts in favor of affirmance.” (In re A.M. (2020) 47 Cal.App.5th 303, 314.)
“Congress enacted ICWA in 1978 in response to ‘rising concern in the mid-1970’s
over the consequences to Indian children, Indian families, and Indian tribes of abusive
child welfare practices that resulted in the separation of large numbers of Indian children
from their families and tribes through adoption or foster care placement, usually in non-
Indian homes.’ ” (In re Isaiah W. (2016) 1 Cal.5th 1, 8; see In re J.C. (2022) 77
Cal.App.5th 70, 76; In re T.G. (2020) 58 Cal.App.5th 275, 287.) ICWA provides: “ ‘In
any involuntary proceeding in a State court, where the court knows or has reason to know
that an Indian child is involved, the party seeking the foster care placement of, or
termination of parental rights to, an Indian child shall notify the parent or Indian
custodian and the Indian child’s tribe, by registered mail with return receipt requested, of
the pending proceedings and of their right of intervention.’ [Citation.] This notice
requirement, which is also codified in California law [citation], enables a tribe to
determine whether the child is an Indian child and, if so, whether to intervene in or
exercise jurisdiction over the proceeding.” (In re Isaiah W., supra, at p. 5; see 25 U.S.C.
§ 1912(a); Welf. & Inst. Code, § 224.3, subd. (a); In re J.C., supra, at p. 76; In re H.V.
(2022) 75 Cal.App.5th 433, 436.)
“ ‘ “ ‘Federal regulations implementing ICWA ... require that state courts “ask
each participant in an emergency or voluntary or involuntary child-custody proceeding
whether the participant knows or has reason to know that the child is an Indian child.”
[Citation.] The court must also “instruct the parties to inform the court if they
subsequently receive information that provides reason to know the child is an Indian
child.” ’ ” ’ ” (In re J.C., supra, 77 Cal.App.5th at p. 77; see 25 C.F.R. § 23.107(a).)
California law “ ‘more broadly imposes on social services agencies and juvenile courts
(but not parents) an “affirmative and continuing duty to inquire” whether a child in the
17.
dependency proceeding “is or may be an Indian child.” ’ ” (In re J.C., supra, at p. 77; see
§ 224.2, subd. (a); In re Benjamin M. (2021) 70 Cal.App.5th 735, 741-742 (Benjamin
M.).)
“Section 224.2 ‘ “ ‘creates three distinct duties regarding ICWA in dependency
proceedings.’ ” ’ ” (In re J.C., supra, 77 Cal.App.5th at p. 77; see In re H.V., supra, 75
Cal.App.5th at p. 437; In re Charles W. (2021) 66 Cal.App.5th 483, 489.) “First, section
224.2, subdivision (b) requires the child protective agency to ask ‘the child, parents, legal
guardian, Indian custodian, extended family members, others who have an interest in the
child, and the party reporting child abuse or neglect, whether the child is, or may be, an
Indian child and where the child, the parents, or Indian custodian is domiciled.’ ” (In re
J.C., supra, at p. 77; see In re H.V., supra, at p. 437; Cal. Rules of Court, rule
5.481(a)(1).) Although this duty is “commonly referred to as the ‘initial duty of inquiry,’
it ‘begins with the initial contact’ (§ 224.2, subd. (a)) and continues throughout the
dependency proceedings.” (In re J.C., supra, at p. 77.)
“Second, if the court or child protective agency ‘has reason to believe that an
Indian child is involved in a proceeding, but does not have sufficient information to
determine that there is reason to know that the child is an Indian child,’ the court and the
Department ‘shall make further inquiry regarding the possible Indian status of the child,
and shall make that inquiry as soon as practicable.’ ” (In re J.C., supra, 77 Cal.App.5th
at p. 78; see § 224.2, subd. (e); In re H.V., supra, 75 Cal.App.5th at p. 437; Cal. Rules of
Court, rule 5.481(a)(4).) “Third, if the further inquiry ‘ “ ‘results in a reason to know the
child is an Indian child, then the formal notice requirements of section 224.3 apply.’ ” ’ ”
(In re J.C., at p. 78; see 25 U.S.C. § 1912(a); § 224.3, subd. (a); In re H.V., at p. 437.)
“ ‘ “ ‘The juvenile court must determine whether ... ICWA applies to the
proceedings.’ ” [Citation.] “If the court makes a finding that proper and adequate further
inquiry and due diligence as required in [section 224.2] have been conducted and there is
no reason to know whether the child is an Indian child, the court may make a finding that
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[ICWA] does not apply to the proceedings, subject to reversal based on sufficiency of the
evidence.” ’ ” (In re J.C., supra, 77 Cal.App.5th at p. 78; see § 224.2, subd. (i)(2); In re
D.S. (2020) 46 Cal.App.5th 1041, 1050; Cal. Rules of Court, rule 5.481(b)(3).) The court
may not, however, “find that ICWA does not apply when the absence of evidence that a
child is an Indian child results from a [child protective agency] inquiry that is not proper,
adequate, or demonstrative of due diligence ....” (In re Josiah T. (2021) 71 Cal.App.5th
388, 408; see In re L.S. (2014) 230 Cal.App.4th 1183, 1198.)
Mother and father argue that the department failed to conduct an adequate inquiry
at both initial inquiry and notice stages into whether the children may be Indian children.
They contend that, while father disclosed that he had Blackfoot and Choctaw heritage,
the department did not adequately continue the inquiry and failed to include information
on the November 5, 2020, ICWA-030 of a paternal aunt, with whom the department had
contact. The record as to mother is confusing. According to the November 5, 2020,
ICWA-030 sent to the tribes mentioned by father, it states that mother reported on
October 6 and October 21, 2020, that she had no Indian heritage. However, the section
366.26 report filed a year later on October 21, 2021, states that mother had said on
October 1, 2021, that she was not sure if she had any Indian heritage. However, this was
long after the juvenile court determined that the ICWA did not apply, and the department
did not then question maternal grandfather and grandmother, and several maternal aunts
and a maternal uncle with whom the department had contact about any possible Native
American ancestry. (See In re H.V., supra, 75 Cal.App.5th at p. 438 [child protective
agency’s “first-step inquiry duty under ICWA and state law was broader” than simply
asking the parent about possible Indian ancestry, “requiring it also to interview, among
others, extended family members”]; see also In re S.R. (2021) 64 Cal.App.5th 303, 314
[section 224.2 “obligates the court and child protective agencies to ask all relevant
involved individuals ... ‘whether the child is, or may be, an Indian child’ ”].)
19.
Furthermore, nothing in the record shows the juvenile court inquired further about
the department’s efforts. (See In re J.C., supra, 77 Cal.App.5th at p. 79 [juvenile court
“did not satisfy its duty to ensure the [child protective agency] adequately investigated
whether [the child] may be an Indian child” where there was “no indication in the record
that, after the detention hearing, the juvenile court gave ICWA another thought in the
almost three years of this dependency case”].)
When error in the initial inquiry is found, there is a disagreement among the
appellate court’s as to whether the failure to discharge the duty of initial inquiry under
section 224.2, subdivision (b), constitutes prejudicial, reversible error.
The published cases seem to fall into the following groups: one concludes that the
error warrants reversal in every case because the duty to inquire was mandatory and
unconditional. (See, e.g., In re Y.W. (2021) 70 Cal.App.5th 542, 556; In re K.R. (2018)
20 Cal.App.5th 701, 709.) In Y.W. the court rejected the notion that a parent should have
to make a factual showing of prejudice, emphasizing “the point of the statutory
requirement that the social worker ask all relevant individuals whether a child is or may
be an Indian child: to obtain information the parent may not have.” (Y.W., supra, 70
Cal.App.5th at p. 556.) The rule establishing automatic reversal without any reason to
believe Native American heritage exists could potentially reward parental gamesmanship
and undermine the policy favoring prompt resolution of juvenile dependency cases. It
also potentially runs afoul of the constitutional requirement that judgments can only be
reversed on appeal in cases where a manifest miscarriage of justice has been shown.
(Cal. Const., art. VI, § 13.)
Another group of cases concludes that the error does not warrant reversal unless a
“miscarriage of justice” is demonstrated to have occurred as a consequence of the failure
to inquire about Native American heritage. (See Cal. Const., art. VI, § 13 [“No judgment
shall be set aside ... unless, after an examination of the entire cause, including the
evidence, the court shall be of the opinion that the error complained of has resulted in a
20.
miscarriage of justice”].) These cases would allow a parent to make an offer of proof on
appeal, showing there is reason to believe Native American heritage exists. (See, e.g., In
re A.C. (2021) 65 Cal.App.5th 1060, 1069; In re Noreen G. (2010) 181 Cal.App.4th
1359, 1388; In re N.E. (2008) 160 Cal.App.4th 766, 770; In re Rebecca R. (2006) 143
Cal.App.4th 1426, 1431.) In the absence of such an affirmative showing, this line of
cases concludes the judgment should be affirmed. But this rule allowing reversal only in
cases where the parent makes at least an offer of proof regarding Native American
heritage amounts to a rule that effectively shifts the department’s unconditional statutory
burden to the parents in cases where the department has failed to fulfill it.
Another option is the self-described “middle ground” approach taken in Benjamin
M., supra, 70 Cal.App.5th 735, in which the appellate court would determine, on a case
by case basis, whether the record reflects there are known relatives identified by the child
welfare agency, who appear to have been able to shed light on the issue of Native
American heritage. Benjamin M. held that the failure to inquire would be reversible error
if “there was readily obtainable information that was likely to bear meaningfully upon
whether the child is an Indian child.” (Id. at p. 744.) Thus, the Benjamin M. court found
the failure to inquire about Native American heritage in that case, regardless of whether
the information was likely to show that the child is an Indian child, was reversible error
because the agency “failed its duty of inquiry by not asking ‘extended family members’
[citation] such as Father’s brother and sister-in-law whether Benjamin has Indian
ancestry on his paternal side.... [T]he missing information here was readily obtainable, as
CFS had spoken to Father’s sister-in-law and Father’s brother and has the address
(through Mother) for either that brother or another one. Moreover, the information those
relatives could have given would likely have shed meaningful light on whether there is
reason to believe Benjamin is an Indian child.” (Benjamin M., supra, 70 Cal.App.5th at
p. 744.)
21.
The Benjamin M. analysis seems to rest on the distinction between cases where it
appears an inquiry could have been easily conducted—because the record demonstrates
relatives were known and readily accessible—and cases where the record does not reflect
the inquiry would have been so easy. (Benjamin M., supra, 70 Cal.App.5th at p. 744.)
But the department’s obligation to make the ICWA inquiry standard does not appear to
be based upon the ease of compliance.
Recently, in In re Dezi C. (2022) 79 Cal.App.5th 769, the court proposed a
“reason to believe” rule, in which an agency’s failure to conduct a proper initial inquiry
into a dependent child’s Indian heritage is harmless unless the record contains
information suggesting a reason to believe that the child may be an Indian child, such that
absence of further inquiry was prejudicial to the juvenile court’s ICWA finding. (Id. at p.
779.) A reviewing court would have “reason to believe” further inquiry might lead to a
different result if the record indicates someone reported possible Indian heritage and the
agency did not follow up on that information, or if the record indicates the agency never
inquired into one of the two parents’ heritage at all. (Ibid.)
Here, father stated that he might have Native American heritage with the Blackfeet
and Choctaw tribes through his father and grandfather, the children’s paternal grandfather
and great-grandfathers. That information, which consisted of names, birthdates and
places of birth, was relayed by the department to the applicable tribes. However, the
department had contact with various other paternal relatives over the course of the
dependency and did not question any of them as to their possible Indian heritage.
As for mother, while she at first stated she did not have any Indian heritage, she
later stated that she was not sure. By this time the juvenile court had already determined
that the ICWA did not apply and the department did not follow up on mother’s
uncertainty. Again, the department had contact with various maternal relatives it could
have questioned, but did not.
22.
Section 224.3, subdivision (a) implicitly recognizes that any finding of ICWA
inapplicability before proper and adequate notice has been given is not conclusive and
does not relieve the court of its continuing duty to inquire into a child’s Indian status in
all dependency proceedings. This, along with the department’s concession that error
occurred, lead us to conclude that the juvenile court’s finding that ICWA did not apply
was not supported by substantial evidence and limited remand is required.
DISPOSITION
The finding that ICWA does not apply is conditionally reversed, and the matter is
remanded to the juvenile court with directions to order the department to comply with the
inquiry provisions set forth in section 224.2.
If, after the court finds adequate inquiry has been made consistent with the
reasoning in this opinion, the court finds ICWA applies, the court shall vacate its existing
order and proceed in compliance with ICWA and related California law. If the court
finds ICWA does not apply, the finding that ICWA does not apply to the case shall be
reinstated.
In all other respects, the court’s orders terminating parental rights are affirmed.
FRANSON, J.
I CONCUR:
SMITH, J.
23.
POOCHIGIAN, Acting P. J., Concurring.
I concur. I write separately to express concern about the adequacy of consideration
of the sibling relationship in separating the children. There appears to be ample evidence
in the record to support termination of parental rights. While the issue of the “sibling
relationship” exception relates to the appropriateness of termination of parental rights, the
rationale undergirding the exception is the well-being of the children who are affected.
Here, we have two young children, S.D. and Greyson D., who were separated and
have lived apart for nearly two years. S.D. was placed in the home of a relative. Greyson,
on the other hand, has been the subject of at least four foster placements. Yet, he was
deemed to be “adoptable.” This is not particularly surprising given the descriptions of his
deportment in the record. That is, while some behaviors were identified (e.g., fighting
with S.D. when they were together), there were reports of his being well adjusted and
healthy – with the overall description of his conduct as not untypical of many children at
his young age. Although the children expressed a desire to be together, S.D.’s care
providers indicated they were unwilling to take both children because of limitations of
space at their home, and “they feel they would be taking away attention that [S.D.] needs.”
While there is some discussion of the sibling relationship in the record, I wonder
whether there was adequate focus on the value of keeping the siblings together. Where the
approval of a willing caregiver is limited to one child, a question arises as to the level of
consideration that should take place for evaluating alternatives that would result in joint
placement. This is not to speculate that such an alternative was available and doable. The
point is simply that given the public policy favoring maintaining the relationship between
siblings in such cases, it is important to be satisfied that effort was made to keep the
children together versus separation and serial placement. From the present record, it does
not appear that the children’s separate placements were critically examined until the final
stage of the proceedings when S.D. had established a stronger bond with her care provider.
Welfare and Institutions Code section 16002 states that it is the Legislature’s intent
to preserve and strengthen the family unit by “ensuring that when siblings have been
removed from their home, … the siblings will be placed together, unless it has been
determined that placement together is contrary to the safety or well-being of any sibling.”
(Welf. & Inst. Code, § 16002, subd. (a)(1).) To effectuate this intent, the responsible
agency “shall make a diligent effort in all out-of-home placements of dependent
children … , including those with relatives, to place siblings together in the same
placement, and to develop and maintain sibling relationships. If siblings are not placed
together in the same home, the social worker … shall explain why the siblings are not
placed together and what efforts [he or she] is making to place the siblings together or why
making those efforts would be contrary to the safety and well-being of any of the siblings.”
(Id. at subd. (b).) Additionally, “[w]hen placement of siblings together in the same home
is not possible, a diligent effort shall be made, and a case plan prepared, to provide for
ongoing and frequent interaction among siblings until family reunification is achieved, or,
if parental rights are terminated, as part of developing the permanent plan for the child.”
(Ibid.) The statute sets forth a legislative goal of placing siblings together but does not
create a mandatory duty to do so. (County of Los Angeles v. Superior Court (2002) 102
Cal.App.4th 627, 642 [“[P]lacement with siblings is a legislative goal that does not create a
mandatory duty. It is a factor to be considered in making the discretionary foster care
placement”].)
In conclusion, despite my qualms regarding adequacy of early consideration of the
sibling relationships in dependency proceedings and the unfortunate circumstances relative
to sibling separation in this case, we cannot say there was insufficient consideration of the
siblings’ relationship at the end of the process nor that the court abused its discretion.
POOCHIGIAN, Acting P. J.
2.