Opinion
B299174
04-10-2020
In re ALECIA S., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SUE L. et al., Defendants and Appellants.
Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant Sue L. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Ryan S. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. CK78618) APPEAL from an order of the Superior Court of Los Angeles County, D. Zeke Zeidler, Judge. Conditionally affirmed. Maryann M. Goode, under appointment by the Court of Appeal, for Defendant and Appellant Sue L. Joseph T. Tavano, under appointment by the Court of Appeal, for Defendant and Appellant Ryan S. Mary C. Wickham, County Counsel, Kristine P. Miles, Assistant County Counsel, and Navid Nakhjavani, Principal Deputy County Counsel, for Plaintiff and Respondent.
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Sue L. (Mother) and Ryan S. (Father) appeal from the order terminating their parental rights to then four-year-old Alecia S. under Welfare and Institutions Code section 366.26. The parents challenge the juvenile court's finding the beneficial parental relationship and sibling relationship exceptions to adoption did not apply. In addition, the parents argue the juvenile court and the Los Angeles County Department of Children and Family Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We agree the Department failed to show it provided updated ICWA notice to one of the tribes identified by Alecia's family members. Accordingly, we remand the matter to allow the Department and the juvenile court to remedy that violation of federal and state law. We otherwise conditionally affirm the order.
Further undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
A. Prior Dependency Case of Alecia's Sibling
On November 16, 2009 the juvenile court declared Alecia's sister, then three-year-old Essence S., a dependent of the court based on domestic violence between Mother and Father and Mother's emotional problems, including schizophrenia and bipolar disorder. On May 5, 2011 the court terminated the parents' family reunification services. On August 29, 2012 the court terminated jurisdiction and placed Essence with her paternal great-grandmother as her legal guardian. B. The Referral, Investigation, and Petition
On November 21, 2016 the Department received a referral stating Mother reported to law enforcement that Father attempted to choke her during an argument in the presence of then two-year-old Alecia. Mother stated Father threw her against the refrigerator and put his hands around her throat to strangle her. Father let go of Mother's throat when Alecia began to cry, "Daddy! Daddy!" Father was arrested, and Mother obtained a temporary restraining order against him.
On January 3, 2017 the Department filed a section 300 petition on behalf of Alecia under section 300, subdivisions (a), (b)(1), and (j). Counts a-1, b-1, and j-1 alleged the parents had a history of domestic violence and engaged in violent altercations in Alecia's presence. On November 19, 2016 Father forcibly threw Mother against a refrigerator and choked her in Alecia's presence. Mother sustained a laceration to her wrist and scratches on her collarbone, chest, and right hand. Further, Essence was currently receiving permanent placement services because of the parents' domestic violence. Count b-2 alleged Father had mental and emotional problems including suicidal ideation. Count b-3 alleged Father was a current abuser of marijuana. The court detained Alecia from Father and released her to Mother. C. Jurisdiction and Disposition Hearing
At the February 2, 2017 jurisdiction and disposition hearing, the juvenile court sustained the allegations in counts a-1, b-1, b-2, and j-1 but dismissed count b-3 (marijuana abuse). The court declared Alecia a dependent of the court under section 300, subdivisions (a), (b)(1), and (j), and ordered Alecia placed in Mother's home under the Department's supervision. The court granted family maintenance services for Mother and enhancement services for Father. The court ordered the criminal protective order to remain in effect. The court granted Father monitored visits for a minimum of two times a week for one hour. The court ordered Mother could not be the monitor or be present during Father's visits. The court also ordered Father to participate in a 52-week domestic violence counseling program and individual counseling to address domestic violence, substance abuse, and other case issues. D. Placement of Essence
In April 2017 Alecia and Essence's 85-year-old paternal great-grandmother, who by then was suffering from dementia, could no longer care for then 10-year-old Essence. The paternal great-grandmother wanted Essence to be placed with Robin R., a church friend who had known Essence since she was two or three years old. Robin was a foster parent and was interested in having Essence placed in her care. Essence was provided with a temporary placement, and then on August 29, 2017 she was placed with Robin. Essence was happy and comfortable in Robin's home, and Robin wanted to be her legal guardian.
During this time period Essence had weekly visits with Mother and Alecia for five hours at Mother's home. The Department recommended Essence not return to her Mother's care until it could assess Mother's compliance with her case plan, mental health treatment, and visitation. E. Section 387 Petition and Adjudication
On March 21, 2017 the police reported Mother allowed Father to spend the night in her house despite the restraining order. Mother and Father had a verbal argument the next morning. When Mother contacted the police, Father fled the home. The social worker was unable to contact Father, and his whereabouts were unknown. Father had not visited Alecia since February 2, 2017. At a July 21, 2017 hearing, the juvenile court declined to order additional enhancement services for Father. On August 5, 2017 Father broke into Mother's home and choked her while Alecia was in the home. Father broke Mother's phone when she tried to call law enforcement.
On August 11, 2017 Alecia was removed from Mother's home and placed in foster care. On August 16 the Department filed a section 387 petition alleging Mother and Father continued to engage in violent altercations in Alecia's presence. Mother violated the restraining order and failed to protect Alecia by allowing Father to reside in the home in violation of the court's order.
The juvenile court detained Alecia from Mother and ordered Mother to receive family reunification services. The court granted Mother monitored visits for a minimum of two times a week for one hour. The court ordered the parents not to visit together. The court ordered the Department to try to place Alecia, who was living with Mrs. B., in the same home as Essence.
On August 30, 2017 Father went to the maternal grandparents' home, where Mother was staying, and threatened maternal grandfather's friend. On September 13 Mother called the police after Father knocked on her apartment door. Father was arrested and incarcerated for violating the restraining order.
The social worker arranged monthly sibling visits for Alecia and Essence with Robin. Robin reported as to a September 28, 2017 visit Essence and Alecia were happy to see each other, and the visit went well.
Mother consistently visited Alecia in 2017 two times a week. Mother actively engaged with Alecia by reading, playing, and talking to her, and showing her pictures of family members. Mother was attentive to Alecia's needs and gave her positive reinforcement, hugs, kisses, and toys. Mother told Alecia she loved her and would do all she could to ensure Alecia returned home. Father did not visit because he was still incarcerated.
At the November 2, 2017 adjudication hearing, the juvenile court sustained the allegations in the section 387 petition. At the contested disposition hearing on December 1, the court removed Alecia from Mother's custody and denied family reunification services to Mother and Father under section 361.5, subdivision (b)(10). F. Reports for the Selection and Implementation Hearing
Section 361.5, subdivision (b)(10), provides the court is not required to order reunification services where it finds by clear and convincing evidence "the court ordered termination of reunification services for any siblings or half siblings of the child because the parent or guardian failed to reunify with the sibling or half sibling after the sibling or half sibling had been removed from that parent or guardian pursuant to Section 361 . . . and that, according to the findings of the court, this parent or guardian has not subsequently made a reasonable effort to treat the problems that led to removal of the sibling or half sibling of that child from that parent or guardian."
The selection and implementation hearing was initially set for February 22, 2018, but the hearing was continued throughout 2018 while the Department evaluated alternatives to provide permanency for Alecia. The January 31, 2018 section 366.26 report stated Mother had been very consistent with her biweekly visits. Mother had "a very positive bond" with Alecia. She read and taught Alecia about various subjects in books, took pictures, watched movies, and played with Alecia using age appropriate toys. During visits, Alecia appeared happy and engaged, and was affectionate towards Mother. Father initially was consistent with his visits, but he had missed the last seven visits because of his incarceration. During visits, Father gave Alecia hugs and kisses. Alecia would often watch a show or movie on Father's cellphone and fall asleep on his lap. Alecia was "very reserved in [F]ather's presence, non-verbal, and non-responsive." Alecia and Essence had one-hour visits every Friday. The Department recommended adoption as Alecia's permanent plan.
On January 21, 2018 Father was arrested for violating the restraining order. He was in jail for 45 days and released on March 1, 2018.
As of June 2018 Mother had weekly visits with Alecia every Tuesday for two hours. Mother's Friday visits had been terminated because Mother constantly missed the visits due to her work schedule. During her Tuesday visits, Mother engaged with Alecia, helped with toilet training, and was attentive to her needs. Mother brought toys and books to engage with Alecia, and sang, read, and took pictures with the child. Father had five visits since the last court date. He had a positive bond with Alecia but struggled to find ways to engage with her. Father usually watched a movie with Alecia during the entire visit.
By the August 2018 section 366.26 report, Mother and Father were attending weekly visits with Alecia. Mother and Alecia had "a very strong attachment," and Alecia was "always pleased and excited to see [M]other." Father's visits had progressed, and Father had "an appropriate strong bond" with Alecia. Alecia was now more comfortable, active, and engaged during visits with Father. Alecia enjoyed visits with Mother and Father, but she also liked returning to her foster home with Mrs. B. Alecia was thriving with Mrs. B., but Mrs. B. was not interested in providing Alecia with a permanent home. Robin was willing to provide permanency for Alecia and Essence, but federal housing regulations prevented Robin from having Alecia in her home unless Robin was a legal guardian or court-appointed adoptive parent.
On October 2, 2018 the Department received a referral alleging Robin's adult son sexually abused two children who resided in Robin's home. The Department found the allegation was unfounded because both children denied the incident had occurred. Alecia's social worker spoke with Robin about the sexual abuse allegation, and Robin agreed her son would not be allowed to watch any minors in her care. Alecia indicated she liked living with her "momma," and she appeared content and comfortable in Robin's home.
The Department identified Robin's home as the most appropriate permanent placement for Alecia because Robin agreed to provide permanency for both Alecia and Essence. Essence liked living with Robin, and she was happy and thriving in her home. On December 27, 2018 the Department placed Alecia in Robin's home.
On March 21, 2019 Robin's home was approved as Alecia's permanent placement. By April 2 the Department had completed the adoption readiness assessment and determined there were no barriers to Robin's adoption of Alecia. Essence, who was then 12 years old, did not want to be adopted by Robin, but she agreed to legal guardianship. Robin was open to adopting Essence in the future.
The July 3, 2019 last minute information for the court reported Mother had not visited Alecia in almost a month. Further, Mother and Father were supposed to have separate monitored visits with Alecia and Essence at Robin's church on alternating Sundays, but they attended visits together. Father was told not to visit on Mother's visitation days, but he still came and hid in his car, where he was seen by Alecia and Essence. He also followed Robin while she was in the grocery store with the children in an attempt to visit with the children again. Father's presence distracted Alecia and Essence and affected Mother's ability to focus on the children's needs during the visits. Father was disruptive, which negatively impacted Essence. The social worker reported, "The Department is concerned over some of the escalating behaviors that Essence has been displaying and they seemed to be exacerbated when her father displays irate/angry disruptive behaviors. Although minor states she wants to visit her father, she then expresses great disappointment over how her father behaves. Essence tends to then respond with her own outbursts." The Department recommended Father's visitation with Essence be reduced to one visit per month in a therapeutic setting. G. Selection and Implementation Hearing
At the July 8, 2019 selection and implementation hearing (§ 366.26), the juvenile court found Alecia was adoptable by clear and convincing evidence and terminated parental rights. The court found Mother and Father failed to prove the parental and sibling relationship exceptions outweighed the benefits of the permanency of adoption or that it would be detrimental to Alecia to terminate the relationships.
The court stated as to the beneficial parental relationship exception, "[T]he parents have maintained somewhat ongoing—I'm having a hard time saying regular and consistent, but ongoing contact with the children and visits with the children . . . ." The court noted that during the hearing Alecia was sitting on Father's lap, "and her sibling is huddled next to them." But the court added, "It's hard to find that there is much of a parental role, especially since [Alecia] is four years old and has been outside of the parents' care for most of her life." The court found "to the extent there is a parental role and relationship," it did not "outweigh[] the benefits of permanence in adoption for Alecia."
As to the sibling relationship exception, the juvenile court found it would not be detrimental to Alecia to sever her relationship with Essence. The court explained Alecia and Essence shared common experiences and were "very close to each other." But Mother and Father did not show preservation of the sibling relationship "outweigh[ed] the benefits of permanence in adoption or that it would be detrimental to Alecia to terminate that relationship."
DISCUSSION
A. The Statutory Exceptions to Adoption
"At the section 366.26 hearing, the focus shifts away from family reunification and toward the selection and implementation of a permanent plan for the child." (In re S.B. (2009) 46 Cal.4th 529, 532; accord, In re Breanna S. (2017) 8 Cal.App.5th 636, 645 (Breanna S.) ["The express purpose of a section 366.26 hearing is 'to provide stable, permanent homes' for dependent children."].) "If adoption is likely, the court is required to terminate parental rights, unless specified circumstances compel a finding that termination would be detrimental to the child." (In re S.B., at p. 532; accord, In re Celine R. (2003) 31 Cal.4th 45, 53.)
"Section 366.26 requires the juvenile court to conduct a two-part inquiry at the selection and implementation hearing. First, the court determines whether there is clear and convincing evidence the child is likely to be adopted within a reasonable time. [Citations.] Then, if the court finds by clear and convincing evidence the child is likely to be adopted, the statute mandates judicial termination of parental rights unless the parent opposing termination can demonstrate one of the enumerated statutory exceptions applies." (Breanna S., supra, 8 Cal.App.5th at pp. 645-646; accord, In re Elizabeth M. (2018) 19 Cal.App.5th 768, 780-781 (Elizabeth M.).) The beneficial parental relationship exception under section 366.26, subdivision (c)(1)(B)(i), "permits the court to order some other permanent plan if '[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.'" (Breanna S., at p. 646; accord, In re Grace P. (2017) 8 Cal.App.5th 605, 612.) Under section 366.26, subdivision (c)(1)(B)(v), the sibling relationship applies if the court finds a compelling reason for determining termination of parental rights would be detrimental to the child because of substantial interference with a child's sibling relationship. (In re Isaiah S. (2016) 5 Cal.App.5th 428, 437; In re D.O. (2016) 247 Cal.App.4th 166, 173.) B. The Juvenile Court Did Not Abuse Its Discretion in Finding the Benefit to Alecia from the Parental Relationship Did Not Outweigh the Benefits from Adoption
The beneficial parental relationship exception "requires the parent to prove both that he or she has maintained regular visitation and that his or her relationship with the child '"'promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.'"'" (Breanna S., supra, 8 Cal.App.5th at p. 646; accord; In re Marcelo B. (2012) 209 Cal.App.4th 635, 643.) "A showing the child derives some benefit from the relationship is not a sufficient ground to depart from the statutory preference for adoption." (Breanna S., at p. 646; accord, In re A.S. (2018) 28 Cal.App.5th 131, 153 ["'A biological parent who has failed to reunify with an adoptable child may not derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.'"].)
"No matter how loving and frequent the contact, and notwithstanding the existence of an '"emotional bond'" with the child, '"the parents must show that they occupy 'a parental role' in the child's life."'" (Breanna S., supra, 8 Cal.App.5th at p. 646; accord, In re G.B. (2014) 227 Cal.App.4th 1147, 1165.) "Factors to consider include '"'[t]he age of the child, the portion of the child's life spent in the parent's custody, the "positive" or "negative" effect of interaction between parent and child, and the child's particular needs.'"'" (Breanna S., at p. 646; accord, In re G.B., at p. 1166.) "Moreover, '[b]ecause a section 366.26 hearing occurs only after the court has repeatedly found the parent unable to meet the child's needs, it is only in an extraordinary case that preservation of the parent's rights will prevail over the Legislature's preference for adoptive placement.'" (Breanna S., at p. 646; accord, In re G.B., at p. 1166.)
"The parent has the burden of proving the [beneficial parental relationship] exception applies." (Breanna S., supra, 8 Cal.App.5th at p. 646; accord, In re Grace P., supra, 8 Cal.App.5th at p. 613.) "The court's decision a parent has not satisfied this burden may be based on any or all of the component determinations—whether the parent has maintained regular visitation, whether a beneficial parental relationship exists, and whether the existence of that relationship constitutes 'a compelling reason for determining that termination would be detrimental to the child.'" (Breanna S., at pp. 646-647, quoting § 366.26, subd. (c)(1)(B).) "When the juvenile court finds the parent has not maintained regular visitation or established the existence of the requisite beneficial relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law." (Breanna S., at p. 647; accord, Elizabeth M., supra, 19 Cal.App.5th at p. 782; In re I.W. (2009) 180 Cal.App.4th 1517, 1528.) "When the juvenile court concludes the benefit to the child derived from preserving parental rights is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion." (Breanna S., at p. 647; accord, In re K.P. (2012) 203 Cal.App.4th 614, 622.)
In In re Caden C. (2019) 34 Cal.App.5th 87, 99, review granted July 24, 2019, S255839, the Supreme Court directed the parties to brief: "([1]) what standard governs appellate review of the beneficial parental relationship exception to adoption; and (2) whether a showing that a parent has made progress in addressing the issues that led to dependency is necessary to meet the beneficial parental relationship exception."
Mother and Father contend their consistent visitation and parental bond with Alecia supported a finding the beneficial parental relationship exception applied. But even if Mother and Father met their burden to show a beneficial parental relationship, the juvenile court did not abuse its discretion in finding the relationship was outweighed by the benefits of permanency for Alecia.
As the juvenile court found, Mother and Father had "somewhat" of a parental relationship with Alecia. During her visits, Mother sang, read, played, and took pictures with Alecia, helped with toilet training, and was attentive to her needs. Alecia appeared happy and engaged, and was affectionate towards Mother. Father began visiting Alecia once a week in 2018. Initially Alecia was "very reserved in [F]ather's presence, non-verbal, and non-responsive." In earlier visits, Father struggled to engage with Alecia. Alecia would often watch a show or movie on Father's cellphone and fall asleep on his lap. But in later visits, Alecia became more comfortable, active, and engaged with Father. Father improved in his ability to bond with Alecia, but he struggled with age appropriate expectations and boundaries.
However, both parents had a history of missed visits. Mother lost her Friday visits because of her work schedule, then failed to visit for the month before the July 8, 2019 selection and implementation hearing. Father only began to visit in 2018 and continued to miss visits until the hearing. Further, starting around June 2019 Mother and Father violated the visitation plan. Father showed up to Mother's monitored Sunday visits and adversely affected the quality of her visits with Alecia and Essence. More troubling, Father's angry and disruptive behavior negatively impacted Essence's behavior. The social worker reported Robin struggled to "effectively manage Essence's behavior as she's affected by how her parents behave when with each other or when her father is being disruptive." Robin also reported Father followed her, Alecia, and Essence inside the grocery store after his visits in an attempt to see the children again.
Moreover, by the time of the July 8, 2019 section 366.26 hearing, Alecia was four years old and had not lived with her parents for the prior two years. Mother and Father contend Alecia "barely knew" Robin because she had lived with Robin for only six months. But Alecia had adjusted well to living with Robin and said she liked living with her "momma." She appeared content and comfortable in Robin's home. Mother and Father express concern about the sexual abuse allegation against Robin's adult son, but the Department determined the sexual abuse allegation was unfounded. Further, Robin agreed not to allow her adult son to watch any minors in her care. Mother points to the statements in the December 6, 2018 status review report that Alecia was "always thrilled to visit with parents" and had "a very harsh breakdown when visitation with either parent [did] not occur." But the August 31, 2018 report indicated while Alecia enjoyed visits with Mother and Father, she also liked returning to her foster home. C. The Juvenile Court Did Not Abuse Its Discretion in Finding the Benefit to Alecia from Her Sibling Relationship Did Not Outweigh the Benefits from Adoption
"The purpose of the sibling exception is to preserve long-standing sibling relationships that serve as 'anchors for dependent children whose lives are in turmoil.'" (Elizabeth M., supra, 19 Cal.App.5th at p. 781; accord, In re Isaiah S., supra, 5 Cal.App.5th at p. 438.) "'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 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.'" (Elizabeth M., supra, 19 Cal.App.5th at p. 781; accord, In re I.R. (2014) 226 Cal.App.4th 201, 213.)
"The court should consider 'the nature and extent of the relationship, including whether the child and sibling were raised in the same house, shared significant common experiences or have existing close and strong bonds.'" (Elizabeth M., supra, 19 Cal.App.5th at p. 781; accord, In re Isaiah S., supra, 5 Cal.App.5th at p. 438.) "'If the court determines terminating parental rights would substantially interfere with the sibling relationship, the court is then directed to weigh the child's best interest in continuing that sibling relationship against the benefit the child would receive by the permanency of adoption.'" (Elizabeth M., at p. 781; accord, In re D.O., supra, 247 Cal.App.4th at pp. 173-174.) "'[T]he concern is the best interests of the child being considered for adoption, not the interests of that child's siblings.'" (Elizabeth M., at p. 781; see In re Celine R., supra, 31 Cal.4th at pp. 49-50.)
The parent has the burden of proving the sibling relationship exception applies. (Elizabeth M., supra, 19 Cal.App.5th at p. 781; In re J.S. (2017) 10 Cal.App.5th 1071, 1080.) "The court's decision a parent has not carried this burden may be based on either or both of two component determinations—whether a beneficial sibling relationship exists and whether the existence of that relationship constitutes 'a compelling reason for determining that termination would be detrimental to the child . . . .'" (Elizabeth M., at pp. 781-782, quoting § 366.26, subd. (c)(1)(B); accord, In re D.O., supra, 247 Cal.App.4th at pp. 173-174.) "When the juvenile court finds the parent has not established the existence of the requisite beneficial relationship, our review is limited to determining whether the evidence compels a finding in favor of the parent on this issue as a matter of law." (Elizabeth M., at p. 782; accord, In re Breanna S., supra, 8 Cal.App.5th at p. 647; In re I.W., supra, 180 Cal.App.4th at p. 1528.) "When the juvenile court concludes the benefit to the child derived from preserving the sibling relationship is not sufficiently compelling to outweigh the benefit achieved by the permanency of adoption, we review that determination for abuse of discretion." (Elizabeth M., at p. 782; accord, In re J.S., at p. 1080.)
The juvenile court found Alecia and Essence shared common experiences and were "very close to each other." On appeal, Mother and Father challenge the court's determination that preservation of the sibling relationship did not "outweigh the benefits of permanence in adoption or that it would be detrimental to Alecia to terminate that relationship." While Alecia and Essence had regular sibling visits, they only began living together when Alecia was placed in Robin's home. Moreover, Robin is Alecia's prospective adoptive parent and Essence's prospective legal guardian. Nothing in the record suggests Alecia's sibling relationship with Essence would be severed if Robin adopted Alecia. (See Elizabeth M., supra, 19 Cal.App.5th at p. 782 [evidence did not compel a finding termination of parental rights would substantially interfere with siblings' continuing relationship where "nothing in the record suggested [girls'] relationship with their brothers, whatever it may have been, would be severed if they were adopted by their current caregivers"]; In re Jacob S. (2002) 104 Cal.App.4th 1011, 1019 [sibling relationship exception did not apply where there was "no evidence that the relationships between any of the siblings will necessarily cease upon termination of parental rights"], disapproved on another ground in In re S.B., supra, 46 Cal.4th at p. 537, fn. 5.)
The parents contend placement of Alecia and Essence on different legal tracks—adoption for Alecia and legal guardianship for Essence—could result in severance of the close sibling bond. They argue Alecia could be adopted by someone else or Essence could be removed from Robin's home if the legal guardianship is terminated. Father also argues if he is able successfully to reunify with Essence in the future (notwithstanding his limited relationship with her over the prior nine years), the siblings would be separated.
The parents' contentions are not supported by the evidence. The Department had completed the adoption readiness assessment and determined there were no barriers to Robin's adoption of Alecia. Further, Essence and Robin agreed to a legal guardianship, and there is no evidence Robin had changed her mind. Mother suggests Robin had problems with Essence's behavior, but according to the Department, Essence's "escalating behaviors" were triggered by Father's disruptive behavior during his visits. Further, even if either Mother or Father is able to reunify with Essence in the future, nothing in the record suggests severance of the sibling relationship. To the contrary, during the period when only Essence was in Robin's care, Robin had facilitated visits between Alecia and Essence and encouraged development of their bond. (See In re Salvador M. (2005) 133 Cal.App.4th 1415, 1422 [in the event mother reunified with her child's brother, there was nothing in the record "to suggest that the brothers' relationship would be terminated," as both mother and grandmother, who was adopting child, "recognize the value of the sibling relationship"].)
The juvenile court did not abuse its discretion in finding Alecia's significant interest in having a loving and permanent home through adoption outweighed any possible disruption to her sibling relationship with Essence. (See Elizabeth M., supra, 19 Cal.App.5th at p. 783; In re Valerie A. (2007) 152 Cal.App.4th 987, 1014 [application of the sibling relationship exception to termination of parental rights "will be rare, particularly when the proceedings concern young children whose needs for a competent, caring and stable parent are paramount"].) D. Notice Under ICWA Was Deficient
1. The ICWA investigation and notices
On January 3, 2017 Mother indicated possible Cherokee ancestry on her parental notification of Indian status form. Father stated he did not have any Indian ancestry. The court ordered the Department to investigate Mother's ancestry and to send notices to all three federally recognized Cherokee tribes.
The maternal grandfather, Kenneth L., told a social worker he had Indian ancestry. Kenneth's father, Wayne L. (the maternal great-grandfather), and his grandfather, Auto L. (the maternal great-great-grandfather), all had ties to the Cherokee Nation and were registered members. Kenneth stated he attempted to register with the Cherokee Nation, but "they told me that I didn't have enough Cherokee blood in me."
On January 21, 2017 the Department sent ICWA notices for Alecia by certified mail to the Eastern Band of Cherokee Indians (Eastern Band), the Cherokee Nation, the United Keetoowah Band of Cherokee Indians (Keetoowah Band), the Secretary of Interior, and the Bureau of Indian Affairs. The certified mail return receipts showed the ICWA notices were delivered to the Eastern Band, the Cherokee Nation, and the Keetoowah Band on January 27, 2017. The ICWA notices listed Kenneth L. as the maternal grandfather and identified the three Cherokee tribes, but the notices stated Kenneth's current and former address and his date and place of birth were "unknown." Likewise, the IWCA notices correctly identified Wayne L. as the maternal great-grandfather and listed the three Cherokee tribes, but the notices stated his other information was "unknown." Although Alecia's ICWA notices did not list Auto L., Essence's IWCA notices accurately identified him as the maternal great-grandfather.
In a January 27, 2017 letter, the Keetoowah Band stated, based on the information provided, Alecia was not a descendent of anyone on the Keetoowah roll. In a February 1 letter, the Eastern Band similarly wrote Alecia was "neither registered nor eligible to register as a member of this tribe." (Boldface omitted.) But on March 1 the Cherokee Nation requested additional information, including Kenneth L.'s middle name and date of birth, "dates of birth for everyone involved, their relationship to the child or children in question, and maiden names of all females listed." On March 30 the juvenile court ordered the Department to investigate the issues raised by the Cherokee Nation and submit responses for both Alecia and Essence.
On April 5, 2017 a social worker spoke with Kenneth and obtained his full name and date of birth; the maternal grandmother's maiden name and date of birth; and the maternal great-grandfather's name and date of birth. Kenneth stated maternal great-grandfather Wayne was born in the 1930's, but he did not remember the exact year. He did not know Auto's date of birth or any other information. The social worker e-mailed the information to the Cherokee Nation that day. In a May 1, 2017 letter, the Cherokee Nation stated "none of the names provided can be found as current enrolled members," and on this basis Alecia and Essence were not Indian children in relation to the Cherokee Nation.
On March 13, 2019 the Department raised with the juvenile court that it had not provided the additional information submitted to the Cherokee Nation also to the Eastern Band and Keetoowah Band. The court ordered the Department to submit the additional information to the Eastern Band and Keetoowah Band by certified mail within one week. On April 2 the Department reported that on March 13 it had sent updated ICWA notices to the Eastern Band and Cherokee Nation, as well as the Bureau of Indian Affairs and the Secretary of the Interior. The updated ICWA notices stated the case name was Essence S., but they identified the child as Alecia S. The proof of service and certified mail return receipts showed the updated ICWA notices were mailed to and received by Eastern Band, Cherokee Nation, the Bureau of Indian Affairs, and the Secretary of the Interior. However, the Department did not file proofs of service or return receipts for the Keetoowah Band. In a March 25 letter, the Eastern Band stated Alecia was "neither registered nor eligible to register as a member of this tribe." (Boldface omitted.) On March 27 the Keetoowah Band sent a letter stating "[u]pon receipt of your inquiry," the tribe had reviewed and researched its tribal registry. The letter stated further, "Based on the information that has been provided to us, we are unable to establish Keetoowah heritage," and therefore Alecia was not recognized as a citizen or eligible to become a citizen of the tribe. The letter did not indicate what information it had received.
At the July 8, 2019 section 366.26 hearing, the juvenile court found the ICWA notices were "proper and complete" and the court did not have reason to know Alecia was an Indian child.
2. ICWA inquiry and notice requirements
ICWA provides as to dependency proceedings, "[W]here the court knows or has reason to know that an Indian child is involved, the party seeking . . . 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." (25 U.S.C. § 1912(a); see In re Isaiah W. (2016) 1 Cal.5th 1, 5; In re N.G. (2018) 27 Cal.App.5th 474, 480; Elizabeth M., supra, 19 Cal.App.5th at p. 784.) California law similarly requires notice to the Indian tribe and the parent, legal guardian, or Indian custodian if the court or the Department "knows or has reason to know" the proceeding concerns an Indian child. (Welf. & Inst. Code, § 224.3, subd. (a); see Elizabeth M., at p. 784; Breanna S., supra, 8 Cal.App.5th at p. 649; Cal. Rules of Court, rule 5.481(c)(1) [notice required "[i]f it is known or there is reason to know an Indian child is involved in a proceeding listed in rule 5.480," including dependency cases filed under § 300].)
ICWA's notice requirement "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. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe receives the required notice." (In re Isaiah W., supra, 1 Cal.5th at p. 5; accord, In re N.G., supra, 27 Cal.App.5th at p. 480; see 25 U.S.C. § 1912(a); Welf. & Inst. Code, § 224.3, subd. (d).)
We review for substantial evidence the juvenile court's findings on whether the Department gave proper notice under ICWA and whether ICWA applies to the proceedings. (In re Charlotte V. (2016) 6 Cal.App.5th 51, 57; In re I.W. (2009) 180 Cal.App.4th 1517, 1529.) With respect to violations of the notice requirements imposed by ICWA and the federal implementing regulations, "'ordinarily failure in the juvenile court to secure compliance with the Act's notice provisions is prejudicial error.'" (Breanna S., supra, 8 Cal.App.5th at p. 653; accord, In re E.H. (2018) 26 Cal.App.5th 1058, 1072.) As we explained in Breanna S., at page 653, "[V]igilance in ensuring strict compliance with federal ICWA notice requirements is necessary because a violation renders the dependency proceedings, including an adoption following termination of parental rights, vulnerable to collateral attack if the dependent child is, in fact, an Indian child." However, "[a]ny failure to comply with a higher state standard . . . 'must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.'" (Ibid.; accord, In re E.H., at p. 1072.)
3. The Department and the juvenile court failed to comply with ICWA's notice requirement
"Under ICWA, the child welfare agency must file the ICWA notice, return receipts and any responses from the tribes with the court so the court can make an informed determination as to whether sufficient notice was provided." (In re C.A. (2018) 24 Cal.App.5th 511, 519; accord, Elizabeth M., supra, 19 Cal.App.5th at p. 788.) As the court explained in In re I.W., supra, 180 Cal.App.4th at page 1529, "[I]n order '[t]o satisfy the notice provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate courts, [the social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. [Citation.] Second, [the social services agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status.'"
Here, there is insufficient evidence to support the juvenile court's finding of proper notice to the Keetoowah Band under ICWA. The Department failed to provide evidence it sent the updated IWCA notice to the Keetoowah Band. The proof of service and certified mail return receipts show the updated ICWA notices were mailed to and received by the Eastern Band and the Cherokee Nation but not the Keetoowah Band. The March 27, 2019 letter from the Keetoowah Band stated Alecia was not a recognized member of the tribe or eligible to become a citizen of the tribe. But the letter does not specify what information it had received from the Department. Because we cannot tell from the record whether the supplemental ICWA notice was provided to the Keetoowah Tribe, the failure to file a proof of service (and possible failure to serve the updated ICWA notice) was prejudicial error. (In re E.H., supra, 26 Cal.App.5th at p. 1072; Breanna S., supra, 8 Cal.App.5th at p. 653.)
We remand the matter for the Department to send an updated ICWA notice to the Keetoowah Band and to file the notice, certified mail return receipt, and any response from the tribe with the juvenile court. Although remand is appropriate for full compliance with the ICWA notice provisions, we conditionally affirm the termination of parental rights. (See Elizabeth M., supra, 19 Cal.App.5th at p. 788 [conditionally affirming § 366.26 order and remanding for compliance with ICWA]; In re Michael V. (2016) 3 Cal.App.5th 225, 236 [same].) If the juvenile court determines Alecia is an Indian child, the court must conduct a new section 366.26 hearing and all further proceedings in compliance with ICWA and California law. If the court determines Alecia is not an Indian child, the court's section 366.26 order will remain in effect.
DISPOSITION
The juvenile court's section 366.26 order is conditionally affirmed. The matter is remanded to the juvenile for full compliance with the notice provisions of ICWA and California law.
FEUER, J. We concur:
ZELON, Acting P. J.
SEGAL, J.