Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super. Ct. No. J206348, A. Rex Victor, Judge.
Rich Pfeiffer, under appointment by the Court of Appeal, for Defendant and Appellant Mother.
Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Father.
Ruth E. Stringer, County Counsel, and Ruth E. Stringer, Deputy County Counsel, for Plaintiff and Respondent.
Karen J. Dodd, under appointment by the Court of Appeal, for Minor.
OPINION
Gaut, J.
Mother, Elizabeth P., and the father of Rosie, Michael H., appeal from a judgment terminating their parental rights and freeing Rosie for adoption by her current caretakers. Mother challenges (1) the jurisdictional bases for the dependency, as well as the constitutional effectiveness of her appointed trial counsel for failing to challenge jurisdiction at any stage, (2) the Department of Children’s Services’s (DCS) failure to insure sibling visitation took place to maintain the sibling relationship (Welf. & Inst. Code, § 16002), and (3) minors’ counsel’s conflict of interest. Mother also joined the issue raised in father’s appeal, relating to DCS’s failure to properly notify the Bureau of Indian Affairs (BIA) under the Indian Child Welfare Act (ICWA). As to the last issue, we reverse and order a limited remand, but in all other respects we affirm the judgment.
Mother has two older sons by different fathers. Those fathers are not a part of this appeal.
1. Background
In January 2006, DCS investigated referrals for neglect of mother’s three children, Francisco G., age 14, Justice R., age seven, and Rosie H., age one. The referrals were based on allegations that mother was using illegal drugs excessively and was homeless. She was sentenced to state prison and arranged to have Rosie cared for during her incarceration by the current caretakers, two members of the congregation of the maternal grandmother’s church. Francisco and Justice were cared for, separately, by other relatives. Upon mother’s release from prison, mother and children lived briefly with Rosie’s caretakers, but eventually they left and lived out of mother’s car. When Francisco told his mother he wished she were back in jail, she punched him in the face causing a black eye. Mother took Francisco and Rosie back to the caretakers, where it was noticed that Rosie had bruising on her nose for which mother had no explanation.
On February 8, 2006, DCS filed a dependency petition on behalf of all three children. The petition alleged physical harm (§ 300, subd. (a)), based on mother’s act of striking Francisco with her fist causing a black eye; failure to protect (§ 300, subd. (b)), based on mother’s and father’s illegal drug use; and no provision for support (§ 300, subd. (g)), based on the fact that Michael H.’s whereabouts were unknown. The children were detained. At the detention hearing, mother informed the court she had Native-American ancestry but she did not know the name of the tribe. The court directed her to complete an “American Indian Ancestry Form,” in order to identify any information she had concerning her Native American ancestry.
The clerk’s minutes routinely indicate the minor was “removed from parents and placed in the temporary custody of” DCS. However, prior to the adjudicatory hearing where jurisdiction is established, a juvenile court lacks authority to “remove” a child from a parent’s custody. A child may be taken into temporary custody by a peace officer or social worker (§§ 305, 306), and at the detention hearing, the court is empowered to determine whether the minor shall be “further detained.” (§ 315.) It is only after the jurisdictional hearing that a court may consider whether it should “limit the control to be exercised over the dependent child” at the disposition phase. (§ 361, subd. (a).) Because “removal” is a milestone in juvenile court proceedings, it is important to accurately reflect the court’s actions in the minutes.
Mother pled no contest to the petition on April 4, 2006, and the court declared Rosie a dependent due to physical abuse, drug use, and failure to provide. The court removed Rosie from her parents’ custody and ordered mother to participate in the court-ordered reunification plan. Because mother was in custody on new criminal charges, the court ordered visitation upon her release, although she was permitted to have visits with Francisco while in custody, and to correspond with him weekly through the social worker. In June, 2006, mother was convicted of unlawful use of identifying information and forgery, and sentenced to two years in prison.
On August 2, 2006, father was found to be the biological father of Rosie based on paternity test results. At the six-month review hearing, DCS recommended termination of services for both parents. The court extended services for mother for an additional six months, but services for father were terminated. At this hearing, minors’ counsel informed the court that if mother did not “do her services,” he would have to declare a conflict of interests, because the recommendation for Rosie would be adoption and long-term foster care for Francisco and Justice.
The report prepared for this hearing reflected mother was incarcerated and had no contact with her children for over six months. Father had visited on several occasions but his erratic behavior and bipolar condition made him unstable and caused the caretakers to request that visits occur at the DCS office under supervision. However, father had participated in substance abuse and parenting programs through the Veterans Administration. He also informed the social worker he had participated in counseling and a psychiatric evaluation but failed to provide documentation.
Also during this period, Justice manifested significant behavior problems which led to four failed placements and suspension from school. The other two children appeared to be doing well. The three children were in separate placements but sibling visits were ordered to occur weekly. During a portion of the time, the visits were taking place at a McDonald’s restaurant, but not all the children were brought for the visit. The social worker arranged for visits to occur at the DCS office in Victorville where it was learned that Francisco was not attending visits on a regular basis. Despite not taking Francisco to his visits consistently, the social worker did not move him to a new placement because the foster parents promised to assure his attendance and because Francisco really liked his placement.
In the report prepared for the 12-month review hearing, the social worker again recommended that services be terminated for mother and that a hearing be set to establish a permanent plan of adoption for Rosie, and a planned permanent living arrangement for Francisco and Justice. The social worker also indicated that ICWA did not apply. At the time of the report, mother’s whereabouts were unknown, and she was believed to be homeless. She had not completed her inpatient substance abuse programs, but she had been consistent with visitation until Justice began to refuse to attend family visits, in April 2007. The sibling visits occurred at these family visits, and there were times when Francisco did not want to attend family visits, also. During the family visits that did occur, Rosie seemed to have little or no relationship with mother and her siblings, frequently staring out the windows in search of her caretakers during visits. None of the children seemed interested in reunifying with mother.
At the 12-month review hearing, father did not attend because he was imprisoned. The court terminated reunification services for mother and scheduled a hearing for the selection and implementation of a permanent plan. (§ 366.26.) However, the court ordered visitation to continue. The court found compelling reasons not to terminate the parental rights of Francisco and Justice, ordering a permanent plan of a Planned Permanent Living Arrangement for the boys.
The adoption assessment recommended adoption for Rosie because she had lived with her current caretakers for the majority of her life since she was two months of age. Although she had a hearing impairment which led to a speech delay, she was otherwise a normal, healthy child who was comfortable in her current placement and viewed her caretakers as her parents. The caretakers understood the importance of maintaining the sibling relationship, and plan to do so by getting a post office box so that Justice and Francisco could correspond with Rosie without having access to their home address.
It was also reported that Justice refused to visit, indicating he did not want to see his family. He also did not want to go to the next visit. After speaking with Justice and learning of his desire, mother announced she would not visit if Justice did not attend. Eventually she modified this position and stated she would visit if she was not working. Rosie and Francisco visited despite Justice’s refusal, and seemed to enjoy their visits. However, the social worker felt their bond did not outweigh Rosie’s right to a long-term family environment.
At the selection and implementation hearing on September 12, 2007, Francisco and Justice testified on the issue of the sibling relationship. Francisco was opposed to Rosie’s adoption because he wanted to be there for her. He indicated he would miss her, and he thought she would miss him, although he was not sure if Rosie really knew him. Justice did not seem to understand what adoption meant, but indicated the reason he stopped visiting Rosie was because it was too far to drive from Chino to Apple Valley. The court found whatever parental or sibling bonds existed were outweighed by the benefits of adoption for Rosie. The court terminated parental rights and ordered adoption as Rosie’s permanent plan. Mother and Rosie’s father appeal.
2. Discussion
Mother’s appeal raises three issues, and she has joined in father’s appeal, which raises a single issue relating to the lack of notice sent to the BIA following mother’s statement at the detention hearing that she had Native American ancestry. Respondent concedes the lack of notice. We address the issues separately, by party.
Mother’s Appeal:
A. Sufficiency of Evidence of Physical Harm, Failure to Protect and Non-Support Allegations.
Mother asserts there was no basis for the court to sustain the petition against her and that her trial counsel should have made the appropriate objections or appealed the judgment. Although mother refers to all three jurisdictional grounds in making this argument, she focuses on the fact mother was able to provide for Rosie’s care. (§ 300, subd. (g).) The petition alleges specific facts under each jurisdictional ground and there was evidence to support each. We examine each.
Section 300, subdivision (a) provides that a child is within the jurisdiction of the juvenile court if the child has suffered, or there is a substantial risk that the child will suffer, serious physical harm inflicted nonaccidentally upon the child by the parent or guardian. The manner in which a less serious injury was inflicted, or a history of repeated inflictions of injuries on the minor or the minor’s siblings, or a combination of these and other actions by the parent or guardian may indicate the child is at risk of serious physical harm. (In re Alysha S. (1996) 51 Cal.App.4th 393, 399, citing In re Rocco M. (1991) 1 Cal.App.4th 814, 823.)
Striking a child with an open hand or fist, causing bruises (see In re Veronica G. (2007) 157 Cal.App.4th 179, 185-186) constitutes serious physical harm within the meaning of section 300, subdivision (a). The petition alleged mother punched Francisco causing a black eye, and that Rosie had bruising on her nose. The reports which were admitted at the jurisdiction hearing established those facts, providing substantial evidence to support the allegations as against all three children where mother’s form of discipline exposed all three children to a risk of serious physical harm.
The allegation of neglect and failure to protect related to mother’s admitted use of illegal drugs. Subdivision (b) of section 300 authorizes a court to assume jurisdiction over children for the “failure or inability . . . to adequately supervise” the child or the “inability of the parent or guardian to provide regular care . . . due to . . . substance abuse.” Here, the evidence offered at the jurisdictional hearing revealed mother admitted to excessive drug use, she had left Justice unsupervised at night in Apple Valley, and that he missed 21 days out of 64 days of school. These facts were sufficient to bring all three children within the provisions of section 300, subdivision (b).
The allegation under section 300, subdivision (g), pertained to the father, not mother. Thus, in contrast to the case of In re S.D. (2002) 99 Cal.App.4th 1068, on which mother heavily relies, mother’s incarceration was not the sole reason Rosie came into the dependency system. The proceedings were initiated because mother had punched Francisco in the face causing a black eye, and Rosie had bruising on her nose which mother could not explain, she had failed to supervise Justice and failed to make sure he attended school, and suffered from a longstanding problem with illegal drugs. There were ample facts to establish jurisdiction based on mother’s abuse and neglect.
B. Mother Was Effectively Represented by Trial Counsel.
Mother argues that trial counsel’s failure to object to jurisdiction or to appeal from the judgment to challenge the court’s jurisdictional findings was the result of ineffective assistance of counsel. In order to establish that a parent’s right to effective representation has been violated, the parent must establish both that counsel’s representation fell below prevailing professional norms and that, in the absence of counsel’s failings, a more favorable result was reasonably probable. (In re Daisy D. (2006) 144 Cal.App.4th 287, 292-293.)
In In re S.D., supra, 99 Cal.App.4th 1068, the court determined that the ground alleged in the dependency petition was defective, due to counsel’s misunderstanding of the provisions of the statute. (Id. at p. 1077.) However, as we have determined the grounds alleged in the petition were not legally defective with respect to mother, counsel committed no error and mother’s right to effective assistance of counsel was not violated.
C. DCS Did Not Fail to Maintain a Bonded Sibling Group
Mother also argues that the judgment terminating parental rights should be reversed because DCS failed to maintain the bonded sibling group. (§ 16002.) We disagree.
Section 16002 reflects the legislative policy in favor of maintaining the continuity of the family unit and strengthening family ties by ensuring that siblings be placed together when removed from their homes. (§ 16002, subd. (a).) Thus, the agency is required to “make a diligent effort” in all out-of-home placements to maintain sibling relationships. (§ 16002, subd. (b).) In this regard, if siblings are not placed together in the same home, the social worker is required to “explain why the siblings are not placed together or what efforts he or she is making to place the siblings together and what efforts he or she is making to place the siblings together or why those efforts are not appropriate.” (§ 16002, subd. (b).) Further, when placement of siblings together in the same home is not possible, diligent effort is required to provide for ongoing and frequent interaction among siblings. (Ibid.)
The statute expresses a legislative goal, but does not create a mandatory duty. (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 641-642.) It simply requires “diligent efforts.” Such efforts were made in this case.
Prior to the dependency, and while mother was serving a prison term, Francisco and Justice were placed voluntarily with different relatives, and Rosie was placed with her current caretakers. After mother’s release from custody, she took all three children with her and lived out of her car. After the incident in which she struck Francisco, mother took Francisco and Rosie back to Rosie’s caretakers’ home, keeping Justice with her. It was at this point that DCS intervened. Subsequently, Francisco had to be removed from the placement with Rosie because he made sexual advances to the caretaker. At the detention hearing, the court directed the social worker to “endeavor to see that they’re placed together.” The initial case plan included a provision for sibling visitation. All subsequent orders included all prior orders not in conflict, so appropriate steps were taken to place the children together and facilitate visitation.
By the time of the jurisdiction report, Francisco and Justice were placed together in a foster home. The court approved the case plan which included sibling visitation. By the six-month review hearing, Justice was in his fourth placement due to behavior issues. Francisco was very fond of his caretakers and did not wish to move. It was discovered that sibling visits were inconsistent, and the social worker took steps to improve attendance. The social worker investigated relative placements for Justice but he did not want to live which his aunt because her husband had abused him, and his father’s cousin, who had expressed an interest, could not be approved.
The record before us demonstrates the social worker made “diligent efforts” to keep the children together and to maintain sibling visitation. The fact there were difficulties was not the fault of DCS. In any event, at no time during the proceedings did mother object to the placements or the lack of consistent sibling visitation. Thus, any error was waived. (In re Anthony P. (1995) 39 Cal.App.4th 635, 641-642.)
Mother also claims that the court failed to make an order for sibling visitation following the termination of parental rights, citing In re Cliffton B. (2000) 81 Cal.App.4th 415. In Cliffton B., the court referred to the statutory provisions dealing with sibling contact after parental rights are terminated. (§ 16002, subd. (e).) That section only requires DCS to take steps to facilitate ongoing sibling contact and to educate adoptive parents on the importance of ongoing sibling contact. Nothing in the statute imposes a mandatory duty on the court to order sibling visits, notwithstanding the legislative policy.
Recent decisional law holds that the sibling relationship is unaffected by a termination of the parent/child relationship. (See In re Miguel A. (2007) 156 Cal.App.4th 389, 394.) Thus, so long as the dependency case remains open (until the adoption is finalized), minors’ counsel can seek orders for sibling visitation.
D. The Timing of Minors’ Counsel’s Declaration of the Conflict of Interests Does Not Require Reversal.
Mother argues the judgment terminating parental rights must be reversed because counsel for the three minors had an actual conflict of interests. We disagree.
A single attorney may represent all siblings unless, at the time of appointment, an actual conflict of interests exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise. (In re Celine R. (2003) 31 Cal.4th 45, 50, 57-58.) A conflict arises where minors’ counsel seeks a course of action for one child with adverse consequences to the other. (In re Barbara R. (2006) 137 Cal.App.4th 941, 953.)
Until the case was referred for a selection and implementation hearing, there remained the possibility that mother would reunify with all three children. Until that point, there was no conflict of interests. Thus, when services for mother were extended at the six-month review hearing, the potential conflict did not exist. After the court made the referral for permanency planning, minors’ counsel informed the court that Francisco opposed the adoption of his younger half-sibling. Counsel requested to be, and was, relieved; new counsel was appointed to represent Rosie, with separate new counsel for Francisco and Justice.
Mother also argues that minors’ counsel failed to raise concerns about the inconsistent sibling visitation to the court’s attention. However, she has not shown that there were any concerns to raise. The record reveals that a substantial number of visits were unattended by the boys because of the boys’ own activities and their lack of interest in traveling to visit. Further, mother could have raised the concerns prior to the selection and implementation hearing, but she did not. Further, both Francisco and Justice testified at the selection and implementation hearing, affording them an additional opportunity to complain of lack of visits, and mother had an opportunity at that hearing to inquire of them whether they were concerned about the inconsistent visits.
Any problems with visitation were waived by failing to bring them to the court’s attention prior to the selection and implementation hearing. (In re Anthony P., supra, 39 Cal.App.4th at pp. 641-642; see also, In re Dakota H. (2005) 132 Cal.App.4th 212, 221-222.)
Father’s Appeal:
Father raises a single argument relating to the failure to provide notice to the BIA under the ICWA. Mother has joined in this argument in her appellant’s reply brief, and DCS concedes the error.
The social worker has a duty to inquire about and obtain all information about a child’s family history in order to assist the tribe in determining if the child is an Indian child. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.) The fact the identity of the tribe is unknown does not discharge DCS from the requirement of giving notice. Thus, the suggestion that a child “might” be an Indian child is sufficient to trigger the notice obligation. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1406, 1408.) Mother informed the court at the detention hearing that she may have Indian heritage. This was sufficient to trigger DCS’s obligation to notify the BIA of the proceedings.
The failure to provide proper notice is prejudicial error requiring reversal and remand. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267.) Because DCS concedes no notice was sent, we must reverse and remand with directions to comply with inquiry and notice provisions of the ICWA. (In re Veronica G. (2007) 157 Cal.App.4th 179, 188.)
3. Disposition
The judgment terminating parental rights is reversed with directions to order the DCS to give notice to the BIA in compliance with the ICWA. After proper notice under the ICWA, if it is determined that the children are Indian children and that ICWA applies to these proceedings, the parents are entitled to petition the juvenile court to invalidate orders violative of the ICWA. (Cal. Rules of Court, rule 5.664(n).) If, after compliance, no response is received from any of the tribes or the BIA indicating the children are Indian children, or the responses received indicate they are not Indian children within the meaning of the act, the order terminating parental rights shall be immediately reinstated and such further proceedings as are appropriate shall be conducted.
We concur: McKinster, Acting P. J., Richli, J.