Opinion
E068018
11-20-2017
In re Q.G., a Person Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. W.B., Defendant and Appellant.
Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. J256143) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed in part, reversed and remanded in part. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant. Jean-Rene Basle, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
Defendant and appellant W.B. (Mother) has a history with child protective services, abusing controlled substances, and untreated mental health issues. As a result, Mother's four children were removed from her care and custody, including her youngest daughter, six-year-old Q.G., who is the subject of this appeal. On appeal, Mother argues the juvenile court erred in: (1) failing to apply the sibling relationship exception to adoption pursuant to Welfare and Institutions Code section 366.26, subdivision (c)(1)(B)(v); (2) failing to properly assess the maternal grandmother for Q.G.'s placement; and (3) finding the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.; Cal. Rules of Court, rule 5.480 et seq.) did not apply because there was insufficient proof the relevant tribes were properly noticed.
Father, Q.G. (Father), is not a party to this appeal. In addition, Q.G.'s siblings are not subjects of this appeal.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
We find the record does not reflect ICWA noticing was properly provided to the relevant tribes. Accordingly, we will conditionally reverse the order terminating parental rights and remand for additional notice under the ICWA and further proceedings consistent with this opinion. We reject Mother's remaining contentions.
II
FACTUAL AND PROCEDURAL BACKGROUND
Mother has a history with the San Bernardino County Children and Family Services (CFS). In 1998, one of her children was adopted after she failed to reunify with the child. Then, on three different occasions in 2001, 2008, and 2011, Q.G. and her siblings were removed from Mother's care due to Mother's physical discipline, medical neglect, general neglect, and the parents' substance abuse and mental health issues. The parents were able to reunify with the children after completing services in those cases.
The most recent referral leading to this juvenile dependency proceeding occurred on August 22, 2014, after a referral was received alleging general neglect and physical abuse by Mother to Q.G.'s 15-year-old sister, Qu.G. (Qu.). The referral stated Mother had slapped Qu. in the face after Mother had been drinking. Additionally, Mother was arrested for public intoxication, and while in jail, she placed a bag over her head and was talking incoherently. As such, she was transported to a hospital where she tested positive for PCP, cocaine, and marijuana. Mother had been diagnosed with a psychotic disorder and was at the hospital the year prior and had been treated there about 35 times in the last 20 years.
When interviewed at the hospital, Mother denied drug use and claimed that she last used drugs in 2013. She admitted slapping Qu. a few times in the face for being disrespectful and for lying. She denied physically disciplining the children. When CFS spoke to Qu., she said Mother slapped her on the face with both hands, and she did not want to be in the home due to Mother's " 'drug use and beating.' " Two weeks prior, Mother had brought Qu. along with her when she bought drugs. Mother and the children resided with the maternal grandmother (MGM). When the social worker visited the home, MGM told Qu. and her siblings to hide at a friend's house, and Qu. and her siblings were rewarded for lying to the social worker and law enforcement. MGM denied Mother used physical discipline with the children and denied knowing if Mother used substances. MGM stated that Qu. was on probation and that they had problems with her behavior.
Qu. and her 11-year-old sister, Qui.G. (Qui.), reported that the previous day after Qu. cursed at her siblings, Mother sat on Qu., who was unable to breathe. Mother also pulled Qu.'s hair, grabbed her by the neck, and held her body and head down on the bed. Meanwhile, MGM watched the incident occur and did not do anything. MGM told Mother she was staying out of her business. Mother told Qu. to take nothing, leave the home and never come back. Qu. called the police, but the family lied to police and said Qu. was acting up and the case was closed. Qu. had also run away from home the week prior because Mother would not take her to school.
The children were all detained with Qu. placed in a group home and the other children placed in a foster home. On August 27, 2014, CFS filed section 300 petitions on behalf of the children pursuant to section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), and (j) (abuse of sibling).
At the August 28, 2014 detention hearing, Mother and Father claimed Indian heritage. Mother identified possible Indian heritage with the Cherokee and Sioux tribes, and Father identified the "Black Foot" tribe on the Judicial Council Forms, form ICWA-020 (ICWA-020). During the hearing, Father informed the court that Blackfoot was not a recognized tribe anymore and changed it to the Blackfeet tribe. Thereafter, the court formally detained the children, ordered the parents to drug test, and provided the parents with supervised visitation.
CFS recommended that the allegations in the section 300 petitions be found true and that the parents be denied reunification services pursuant to section 361.5, subdivisions (b)(10), (b)(11) and (b)(13). Mother had a history with CFS dating back to 1998. Mother had a son born in 1998 when she was 17 years old who was removed from Mother's care in February 1998. Mother was offered reunification services, but she failed to complete her plan, resulting in the termination of her parental rights in July 2000. Mother's history with substance abuse and untreated mental health issues dated back to 2004 when she tested positive for marijuana after her 10-year-old son R.G. was born. She also tested positive for PCP and marijuana when Q.G. was born in 2011. In addition, Mother was placed on a 5150 hold for trying to kill Qu., then eight years old, in 2008, and in 2011 for physically abusing Qu. and R.G. Furthermore, Mother was arrested for driving under the influence while the children were in the car. Mother had an extensive criminal history dating back to 2004, including arrests and convictions for public drunkenness, attempted robbery, willful cruelty to a child, driving on a suspended license, disturbing the peace, driving under the influence of alcohol, drugs, and burglary. The children had been in and out of the dependency system most of their lives. As each child was born, he or she ended up in the dependency system.
Q.G. and her sister Qui. were placed together with the paternal great aunt (Ms. M.). Ms. M. was willing and able to have Qu. and R.G. in her care, but R.G. and Qu. reported they were happy in their respective placements and doing well.
On September 22, 2014, Mother was arrested for threatening to throw a " 'cocktail bomb' " in the caregiver's cousin's home and threatened to go to the caregiver's home. Reportedly, Mother resisted arrest and caused a high-speed chase with law enforcement. She was arrested for resisting arrest, evading a police officer with a motor vehicle, criminal threats, and offensive words in a public place.
On October 7, 2014, CFS filed the Judicial Council ICWA-030 forms (ICWA-030) with the juvenile court. The forms provided the parents' names, current addresses, dates and places of birth along with information regarding maternal and paternal family members. No specific tribe was listed for Mother or maternal family members. The Blackfeet Tribe was provided notice in relation to Father and the paternal side of the family.
On October 9, 2014, the court sustained the section 300 petitions and declared the children dependents of the court. Thereafter, the court set a dispositional hearing.
On November 19, 2014, Mother was arrested for disorderly conduct and being drunk in public after Mother visited Ms. M.'s home, stole Ms. M.'s house keys, and " 'ram shackled' " Ms. M.'s home the next day. Ms. M. said she intended to relocate so that her address would remain confidential. The paternal grandmother told the social worker that Mother had threatened to blow her house up in September 2014 and would like to assist Ms. M. in caring for the children but was unable to do so while Mother knew where she lived.
At the scheduled contested disposition held on November 21, 2014, Mother was not present. The court ordered no reunification services to the parents pursuant to section 361.5, subdivisions (b)(3), (10), (11) and (13), and set a section 366.26 hearing. CFS's counsel advised the court that R.G. was living with Ms. M.
CFS received a response letter from the Blackfeet Tribe indicating Q.G. was not enrolled, and the tribe would not intervene. On December 9, 2014, the court found ICWA did not apply.
CFS recommended that Ms. M. be appointed legal guardian of Q.G., Qui., and R.G. Qu. reported that she preferred to stay in the group home. Qu. did not see her siblings frequently due to transportation issues and Ms. M.'s work schedule. The parents continued to visit the children while supervised by Ms. M.
On March 24, 2015, CFS received a referral alleging physical abuse, emotional abuse and general neglect of the children by Ms. M. Ms. M. denied the allegations and asked that the children be removed as she was experiencing stress with personal issues in her life and felt she was the victim of false accusations. When interviewed, the children provided conflicting stories which cast doubt on the allegations of abuse. Q.G. indicated that in December 2014, Ms. M. lifted her up by the back of her shirt and put her down on the floor in an abrupt manner which led Q.G. to cry. It was unclear if there was physical abuse to the children by Ms. M., but the social worker opined Ms. M. was neglecting the children's basic needs.
On April 3, 2015, CFS filed a section 387 supplemental petition stating Ms. M. was no longer able or willing to care for the children. CFS recommended that the petition be sustained. The children were placed in the home of Mrs. S. The children were comfortable and enjoyed their placement with Mrs. S.
At the April 7, 2015 detention hearing, the children were formally detained and maintained in the home of Mrs. S. At the April 28, 2015 jurisdiction/disposition hearing, the section 387 supplemental petition was found true and the children were continued as dependents of the court.
By October 28, 2015, Q.G. continued to remain with Mrs. S. However, R.G. was placed in the home of Mrs. H. after displaying aggressive behavior toward Qui. and Q.G. Additionally, after displaying aggressive behavior to Q.G., Qui. was placed in a different foster home on August 11, 2015, but subsequently moved to a group home after aggressive behavior with a roommate in the foster home. Qu. was incarcerated at juvenile hall after she pled guilty to vehicle theft. Mrs. S. reported that Q.G. was calmer since Qui. was moved to another home and she was observed to be more comfortable in the home. Q.G. said she liked Mr. and Mrs. S., and they expressed interest in taking legal guardianship of Q.G.
Visitation with the parents was inconsistent, but the social worker noted there had been some improvement and was reluctant to suspend visitation.
At the October 28, 2015 status review hearing, the court maintained the children as dependents and found that a section 366.26 hearing was not in the children's best interest.
On March 8, 2016, Mother filed a section 388 petition and requested the court reconsider reunification between her and the children. Mother claimed she had completed her case plan and was refraining from drug use. She contended her request was in the children's best interest as the siblings were separated, and she believed it would be better for the family to reunify as a unit.
On March 10, 2016, the court denied Mother's petition, finding there was no new evidence or a change of circumstances and that the proposed change was not in the children's best interest.
Q.G., Qui. and R.G. were adjusting well in their respective placements, and their behavioral issues had improved. Meanwhile, CFS could not locate Qu. Q.G. was "flourishing" in her placement with Mr. and Mrs. S. The bond between Q.G. and her foster parents had deepened, and she was loved and nurtured by her foster parents. Q.G.'s needs were met by her foster parents and she was responsive to the parental nurturing and attention. They remained interested in legal guardianship of Q.G.
Meanwhile, Mother had missed 15 visits during the past six months and was very late on five other occasions. She also did not show up for her children's birthday party despite the party being rearranged with her consent. However, when she did visit, the visits were positive and she interacted appropriately with the children.
On July 7, 2016, CFS informed the court that Mother had stopped attending visitation after an incident occurred on April 21, 2016, where she appeared to be under the influence of drugs. During an earlier incident, she followed R.G. into the men's restroom claiming his hands were not clean enough, and he became upset when she was yelling and screaming. Mother did not show up for a drug test referral. And, on June 6, 2016, Mother was arrested for possession of a firearm and burglary, and she remained in custody. Based on CFS's recommendation, supervised visits were reduced from weekly to twice per month, and Mother was to submit to random drug tests.
CFS recommended legal guardianship for Qui. and R.G., who were each in different group homes, and a section 366.26 hearing be set to establish a permanent plan of adoption for Q.G. On August 29, 2016, Q.G. had been placed in a pre-adoptive home with Mrs. S. Q.G. was having difficulty adjusting to her new school. Mrs. S. reported Q.G. misbehaved in school, was disrespectful, talked back, and expressed fear of demons in her closet at home. Q.G. was referred to services to address adjustment concerns. Q.G.'s needs, however, were being met by Mrs. S. and Mrs. S. truly desired to work with Q.G. Mrs. S. reported that daily she and Q.G. played learning games, read story books at bedtime, and watched children's movies together. Mrs. S. had also purchased a learning tablet for Q.G. to help her learn the alphabet and had enrolled Q.G. in Girl Scouts. R.G. was adjusting well in his group home, and he said he liked being in the home. Qui. still continued to instigate fights with staff and clients, and she tended to respect older staff members more than the younger ones.
On September 26, 2016, MGM filed a section 388 petition requesting Q.G. be placed in her care. She claimed that Mother no longer resided with her, she had enrolled in drug treatment classes and was participating in drug testing. MGM believed her request was in Q.G.'s best interest because she would make sure she had proper housing, supervision, education, and it would be beneficial for her to be with family.
MGM referred to Q.G. as a "he" and her "grandson." Q.G., however, is a female.
On September 29, 2016, the court ordered MGM be assessed and provided CFS the authority to place Q.G. with her, if appropriate.
Mother stopped visiting the children in April 2016, and MGM informed the social worker in June 2016 that Mother was arrested for violation of her probation and was detained in jail. MGM and her husband visited the children and had a good relationship with the children, but MGM was on probation and had prior child welfare cases and, therefore, CFS did not believe she was appropriate for the children's placement or unsupervised visitation.
Mother was present but in custody at the October 28, 2016 status review hearing. The court set a section 366.26 hearing regarding Q.G.'s matter.
CFS recommended Q.G. be adopted and parental rights be terminated. As of February 27, 2017, Q.G. had lived in the home of her non-related prospective adoptive mother, Mrs. S., for five months. Q.G. was developmentally and academically on target and she was thriving in Mrs. S.'s home. She called Mrs. S. " 'Mom' " and sought her out for comfort and attention. Mrs. S. and Q.G. shared mutual affections to each other. Mrs. S. and Q.G.'s teacher reported that Q.G. had some behavioral issues before and following visits with her birth family. The social worker opined attachment issues were inevitable as Q.G. had six placements in her six years of life. Mrs. S. reported that Q.G. had " 'made such wonderful progress' " and that she wanted to ensure Q.G. had stability, security, and love to be successful. Mrs. S. was committed to being Q.G.'s mother, helping her meet her greatest potential, and providing her with permanency. Mrs. S. had enrolled Q.G. in a private school and had already started a college fund for Q.G.
Q.G. visited her siblings once per month. The children all seemed connected to one another and the siblings enjoyed interacting with Q.G. Q.G. enjoyed being " 'coddl[ed]' " by her family members at visits.
On March 14, 2017, Mother filed another section 388 petition, requesting the court consider the siblings' attachment to each other and contended it would cause "traumatic stress issues" if Q.G. was separated from her siblings and adopted by a non-related caretaker. Mother claimed MGM's home had been approved and that all the children wanted to return to MGM. Mother requested Q.G. be moved to her home so Q.G. could be with relatives and maintain a relationship with her siblings. The court ordered a hearing on the section 388 petition on the same date as the section 366.26 hearing.
CFS reported that MGM's home was denied due to a " ' significant child welfare history and due to long criminal history/evidence of rehabilitation indicates less than two years sobriety.' " The social worker observed that Q.G. seemed the most bonded with Qu., her eldest sister, who took on a nurturing role of mother with Q.G. Qu. had a history of "AWOLING" from her placements and did not visit from November 2015 until July 2016, and she had been "AWOL" again since January 17, 2017, and had not visited with Q.G. since then. Q.G. did not appear as attached to her other siblings as Qui., who was removed earlier from Q.G.'s placement because of her bullying and R.G. was often quiet during visits and had limited interaction with Q.G. It was noted that Q.G. did not have any separation anxiety after visits. However, her behavior did change after visits, which included bedwetting and tantrums at school. In her adoptive home, Q.G. did not inquire about the siblings or when the next visit would occur. She inquired whether she had to visit her siblings, and she complained about MGM, stating she does not like MGM. Although Q.G. had a relationship with her birth family, she was thriving in her adoptive home. Q.G. was aware visits would soon be terminated, but she did not inquire about the loss of her biological family members.
CFS noted its concerns with placement of the children in MGM's care. MGM had a criminal history involving multiple offenses related to substance abuse. In addition, CFS was concerned about MGM's failure to protect or acknowledge the abuse to the children that occurred while in Mother's care. MGM witnessed when Qu. was physically abused and did nothing to stop, report, or prevent the abuse and CFS considered her a party to the abuse. MGM also had substantiated general neglect and caretaker absence history due to incarceration and substance abuse. She previously had a child welfare case resulting in her child going to permanent placement and a previous family maintenance case.
The section 388 and contested section 366.26 hearings were held on March 17, 2017. At that time, Qui.'s counsel objected to Q.G.'s adoption, but her counsel did not believe there were issues to support filing a section 388 petition on her behalf. Mother's counsel requested a lesser plan of legal guardianship. Her counsel argued there was family requesting placement and that the sibling bond was significant and termination of parental rights would be detrimental to that relationship.
Following arguments, the court found there were legitimate reasons for not placing the children with MGM and, it was not in their best interest to be placed with MGM as there were "significant safety concerns" raised in the report. The court also determined the sibling bond exception inapplicable as there was no sibling bond to the extent that Q.G. would be greatly harmed in severing the ties. The court found Q.G. adoptable and terminated parental rights. This appeal followed.
III
DISCUSSION
A. Sibling Relationship Exception
Mother argues the juvenile court erred in finding the sibling relationship exception to adoption did not apply because Q.G. knew her siblings, would benefit from continuing a relationship with her siblings, and the benefit of continuing the relationship outweighed the benefits of adoption. We disagree.
" 'At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citations.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child." (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
There are statutory exceptions that " 'permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption.' " (In re C.B. (2010) 190 Cal.App.4th 102, italics & 122, fn. omitted.) One statutory exception to adoption applies when "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).)
To establish the sibling relationship exception, the parent must show: (1) the existence of a significant sibling relationship; (2) that termination of parental rights would substantially interfere with that relationship; and (3) that it would be detrimental to the child being adopted if the relationship ended. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 951-952; see In Celine R. (2003) 31 Cal.4th 45, 54 (Celine R.).) The parent asserting the sibling relationship exception has the burden of proof. (In re L.Y.L., at p. 952.) If the parent makes this showing, then the juvenile court balances the benefit to the child of continuing the sibling relationship against the benefit of adoption. (Id. at pp. 952-953.) However, even if a sibling relationship exists that is so strong its severance would cause the child detriment, the juvenile court may still conclude that the detriment is outweighed by the benefit of adoption. (Ibid.) It is a "rare" case in which the court will find that this exception to adoption applies, particularly when the proceedings concern a young child whose needs for a competent, caring, and stable parent are paramount. (In re Valerie A. (2007) 152 Cal.App.4th 987, 1014.)
We review the juvenile court's order declining to apply the sibling relationship exception for substantial evidence. (In re L.Y.L., supra, 101 Cal.App.4th at p. 947.) However, we review the court's weighing of competing interests under the abuse of discretion standard. (See In re Anthony B. (2015) 239 Cal.App.4th 389, 395; In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314-1315.)
The juvenile court did not err in concluding Mother did not meet her burden of establishing the sibling relationship exception. Mother failed to present evidence showing termination of parental rights and adoption would substantially interfere with Q.G.'s relationship with her siblings. As the court observed in rejecting this exception to adoption, CFS's reports indicate that "there isn't a sibling bond, at least not to the extent that it would greatly harm [Q.G.] to sever ties to the siblings." There is substantial evidence in the record to support the court's finding.
Q.G. was three years old when she was removed from Mother's custody and placed with her 10-year-old brother R.G. and 11-year-old sister Qui. in various placements for about one year. However, after R.G. and Qui. displayed aggressive behavior towards Q.G., R.G. and Qui. were moved to other placements. After her siblings were moved to other homes, Q.G.'s caregiver reported Q.G. was calmer. Although Q.G. continued to visit her siblings once per month thereafter and the siblings enjoyed interacting with Q.G., who was coddled by them at visits, and the siblings appeared to be connected to one another, the social worker noted that Q.G. was not as attached to her siblings since Qui. bullied her while they were living together, and R.G. was often quiet during visits and had limited interaction with Q.G. Furthermore, although Q.G. was the most bonded to her eldest sister Qu., Qu. would often go AWOL for several months and Q.G. had not seen Qu. since January 2017. Moreover, Q.G. did not have any separation anxiety after visits with her siblings, and she did not inquire about her siblings or when the next visit would occur. While Q.G. had been visiting with her siblings and the siblings enjoyed their visits, there is no evidence that Q.G. had a significant sibling relationship, the severance of which would be detrimental to Q.G. The juvenile court could reasonably conclude Q.G.'s limited relationship with her siblings did not outweigh the benefits of a stable adoptive home. (See In re Daisy D. (2006) 144 Cal.App.4th 287, 293 ["[A]lthough the [child] clearly enjoyed the time she spent with her half siblings, there was no evidence that the detriment she might suffer if visits ceased presented a sufficiently compelling reason to forgo the stability and permanence of adoption by caretakers to whom she was closely bonded."].)
Mother argues that "it was likely there would be substantial interference in the relationship as there were no assurances from [Q.G.]'s caretaker that sibling visitation would occur if the adoption was finalized." This, however, is insufficient to invoke the exception. "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." (In re L.Y.L., supra, 101 Cal.App.4th at p. 952.)
Since Mother presented no evidence termination of parental rights would substantially interfere with Q.G.'s sibling relationship, and the evidence does not otherwise compel a finding in favor of Mother on this issue, the juvenile court did not err in declining to apply the sibling relationship exception to adoption based on Mother's failure of proof. However, even if the termination of parental rights would substantially interfere with the relationship shared by Q.G. and her siblings, the juvenile court would not have abused its discretion in concluding the benefits of continuing the sibling relationship did not outweigh the benefits of a permanent home for Q.G. through adoption. (Celine R., supra, 31 Cal.4th at p. 61.) Q.G. required permanency and stability in her life, which her prospective adoptive mother provided. Since being in her care, Q.G.'s behavior had significantly improved, and she was thriving. The juvenile court's determination is simply not beyond the bounds of reason. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319 (Stephanie M.).) Accordingly, the juvenile court did not err in finding the sibling relationship exception did not apply.
B. Placement with MGM
Mother also argues that the order terminating parental rights must be reversed because the juvenile court erred in failing to evaluate MGM properly for placement. We find Mother's argument unavailing.
Under section 361.3, the Legislature intended " 'relatives be assessed and considered favorably, subject to the juvenile court's consideration of the suitability of the relative's home and the best interests of the child.'. . . [¶] . . . When considering whether to place the child with a relative, the juvenile court must apply the [section 361.3] placement factors, and any other relevant factors, and exercise its independent judgment concerning the relative's request for placement." (In re Isabella G. (2016) 246 Cal.App.4th 708, 719, italics omitted (Isabella G.).) Section 361.3 seeks to implement the public policy goal of preserving families during the dependency process. (See In re Lauren Z. (2008) 158 Cal.App.4th 1102, 1112 (Lauren Z.).)
Section 361.3 states in relevant part: "(a) In any case in which a child is removed from the physical custody of his or her parents . . . , preferential consideration shall be given to a request by a relative of the child for placement of the child with the relative . . . . In determining whether placement with a relative is appropriate, the county social worker and court shall consider, but shall not be limited to, consideration of all the following factors: [¶] (1) The best interest of the child, including special physical, psychological, educational, medical, or emotional needs. [¶] (2) The wishes of the parent, the relative, and child, if appropriate. [¶] (3) The provisions of Part 6 (commencing with Section 7950) of Division 12 of the Family Code regarding relative placement. [¶] (4) Placement of siblings and half siblings in the same home . . . . [¶] (5) The good moral character of the relative and any other adult living in the home . . . . [¶] (6) The nature and duration of the relationship between the child and the relative, and the relative's desire to care for, and to provide legal permanency for, the child if reunification is unsuccessful. [¶] (7) The ability of the relative to do the following: [¶] (A) Provide a safe, secure, and stable environment for the child. [¶] (B) Exercise proper and effective care and control of the child. [¶] (C) Provide a home and the necessities of life for the child. [¶] (D) Protect the child from his or her parents. [¶] . . . [¶] (F) Facilitate visitation with the child's other relatives. [¶] (G) Facilitate implementation of all elements of the case plan. [¶] (H) [¶] (i) Provide legal permanence for the child if reunification fails. [¶] (ii) However, any finding made with respect to the factor considered pursuant to this subparagraph and pursuant to subparagraph (G) shall not be the sole basis for precluding preferential placement with a relative. [¶] (I) Arrange for appropriate and safe child care, as necessary. [¶] (8) [¶] (A) The safety of the relative's home. For a relative to be considered appropriate to receive placement of a child under this section . . . , the relative's home shall first be assessed pursuant to the process and standards described in subdivision (d) of Section 309." --------
In Isabella G., our colleagues in Division One recently recognized that the section 361.3 relative preference applies when making the initial placement decision and during the subsequent dependency period. (Isabella G., supra, 246 Cal.App.4th at pp. 719-723; see Cesar V. v. Superior Court (2001) 91 Cal.App.4th 1023, 1032 (Cesar V.); In re Joseph T. (2008) 163 Cal.App.4th 787, 793.) Specifically, the court held the relative preference rules govern even if the reunification period has ended and a new placement is not "necessary" (i.e., there would be no placement change considered except for a relative's placement request). (Isabella G., at p. 723.) The court explained that "[i]deally, the statutory scheme contemplates the Agency has identified and approved the child's relatives for placement before the dispositional hearing," but the Legislature did not intend to limit to this time period the obligation to consider a relative's custody request. (Id. at p. 719.)
Nevertheless, our colleagues in Isabella G. also recognized that despite the strong relative preference rules, a relative is not guaranteed custody and the focus must remain on the child's best interest. (Isabella G., supra, 246 Cal.App.4th at p. 723; see Stephanie M., supra, 7 Cal.4th at pp. 317-320, 322; In re Joshua A. (2015) 239 Cal.App.4th 208, 218-219; accord, In re K.L. (2016) 248 Cal.App.4th 52, 66, fn. 4 ["The relative placement preference established by section 361.3 does not constitute 'a relative placement guarantee.' "].) Nor does it supply a presumption that the children will be placed with the relative. (Stephanie M., at pp. 320-321.) When considering a relative's placement request, the child's best interests are paramount, and the court must consider the statutory factors that seek to ensure the child's interests are promoted and protected. (§ 361.3, subd. (a)(1); Stephanie M., at p. 320 [even if the relative preference applies, it does not "overcome the juvenile court's duty to determine the best interests of the child"]; see Lauren Z., supra, 158 Cal.App.4th at p. 1112; see also In re Joshua A., at pp. 218-219.) "[R]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected." (Stephanie M., at p. 321.)
Accordingly, when a party brings a section 388 motion seeking to move a child's custody to a relative's home after the disposition hearing or after a section 366.26 reference, the court must give preferential consideration to the request, but this consideration must include an assessment of the child's current circumstances and whether the new placement would be in the child's best interest. (Isabella G., supra, 246 Cal.App.4th at p. 723; see Stephanie M., supra, 7 Cal.4th at pp. 317-320, 322.) A juvenile court has broad discretion in making these determinations. (Stephanie M., at p. 318; accord, In re Amber M. (2002) 103 Cal.App.4th 681, 685-686.)
We review the juvenile court's determination regarding relative placement for abuse of discretion. (In re Robert L. (1993) 21 Cal.App.4th 1057, 1067, superseded by statute on another ground as stated in Cesar V., supra, 91 Cal.App.4th at p. 1032; see In re M.M. (2015) 235 Cal.App.4th 54, 64 [applying the abuse of discretion standard to the juvenile court's order changing the child's placement at the section 366.26 hearing].) We will not disturb the court's determination " ' "unless the trial court has exceeded the limits of legal discretion by making an arbitrary, capricious, or patently absurd determination." ' " (Stephanie M., supra, 7 Cal.4th at p. 318.)
In the present matter, the juvenile court recognized MGM's desire to seek placement of Q.G. and ordered CFS to assess MGM's home. CFS assessed MGM, among other relatives, for placement of the children. However, CFS denied MGM's home based on MGM's own history with CFS, multiple criminal charges involving substance abuse, and MGM's failure to maintain sobriety. Moreover, CFS was concerned about MGM's failure to protect or acknowledge the children's abuse that occurred while in Mother's care and residing with MGM. MGM had witnessed the incident of physical abuse to Qu. by Mother leading to the children's detention in these proceedings, and MGM did nothing and told Mother that she was staying out of her business. And, when CFS was initially investigating the incident and visited MGM's home, MGM told the children to hide at a friend's house, and the children were rewarded for lying to the social worker and law enforcement. In fact, since MGM did nothing to stop the abuse or report or prevent any abuse from occurring, CFS considered MGM a party to the abuse.
Mother claims the juvenile court failed to assess independently MGM's home for placement and merely referenced CFS's addendum report. It is clear that the court considered CFS's report in making its own determination and stated "there are legitimate reasons not to place with the maternal grandmother" and there "are significant safety concerns highlighted in today's addendum report as to why placement with the grandmother is not appropriate." Although Mother criticizes the court for referring to CFS's addendum report for denying placement, she does not contend that the factual information regarding MGM is inaccurate. In fact, as noted above, the report aptly demonstrated legitimate justification for not placing Q.G. with MGM. Contrary to Mother's claim, there is no evidence to suggest that the court's denial of MGM's placement request was based solely on the social worker's recommendation without any independent assessment. Mother's argument is factually unsupported because the record shows the court properly considered the relative preference rules.
Moreover, " '[r]egardless of the relative placement preference, the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected.' [Citation.] Section 361.3 does not create an evidentiary presumption that relative placement [or in this case with a grandparent] is in a child's best interests. [Citation.] The passage of time is a significant factor in a child's life; the longer a successful placement continues, the more important the child's need for continuity and stability becomes in the evaluation of [his or] her best interests." (In re Lauren R. (2007) 148 Cal.App.4th 841, 855.)
In the present matter, a careful review of the entire record shows that it would not be in Q.G.'s best interest to change her placement from Mrs. S.'s home to MGM's home. The evidence shows that Q.G. was thriving in Mrs. S.'s home and that Q.G. was strongly bonded to Mrs. S. In addition, Q.G. was very well cared for and Mrs. S. was meeting Q.G.'s needs. Mrs. S.'s statements clearly showed that Mrs. S. was committed to providing stability, love, and security to Q.G. Based on all of the evidence before it, the juvenile court could properly conclude that it was not in Q.G.'s best interest to be moved from Mrs. S., whom Q.G. referred to as "Mom" and was attached to. (See Stephanie M., supra, 7 Cal.4th at p. 325.)
Mother has failed to demonstrate the juvenile court erred in not applying the relative placement preference to MGM.
C. ICWA
Mother also contends CFS failed to provide ICWA notices to the Cherokee and Sioux tribes. CFS concedes the error, and requests the matter be remanded for the limited purpose of providing adequate notice to the relevant tribes.
The ICWA was enacted "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . ." (25 U.S.C.A. § 1902.) "The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations . . . ." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469 (Desiree F.)
Notice of the proceedings is required to be sent whenever it is known or there is reason to know that an Indian child is involved. (25 U.S.C.A. § 1912(a); Welf. & Inst. Code, § 224.2, subd. (a); see Desiree F., supra, 83 Cal.App.4th at p. 469.) Notice serves a twofold purpose: "(1) it enables the tribe to investigate and determine whether the minor is an Indian child; and (2) it advises the tribe of the pending proceedings and its right to intervene or assume tribal jurisdiction." (Desiree F., at p. 470.) Under California law, the agency must send notice, return receipt requested, to "all tribes of which the child may be a member or eligible for membership." (§ 224.2, subd. (a)(3).) If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to notice to the BIA. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.)
In addition to the child's name and date and place of birth, if known, the notice is required to include the "name of the Indian tribe in which the child is a member or may be eligible for membership, if known." (§ 224.2, subd. (a)(5)(B).) The notice is also required to contain "[a]ll names known of the Indian child's biological parents, grandparents, and great-grandparents, . . . as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known." (§ 224.2, subd. (a)(5)(C); see 25 C.F.R. § 23.11.)
Juvenile courts and child protective agencies have " 'an affirmative and continuing duty' " to inquire whether a dependent child is or may be an Indian child. (In re H.B. (2008) 161 Cal.App.4th 115, 121; § 224.3; Cal. Rules of Court, rule 5.481.) As soon as practicable, the social worker is required to interview the child's parents, extended family members, the Indian custodian, if any, and any other person who can reasonably be expected to have information concerning the child's membership status or eligibility. (§ 224.3, subd. (c); In re Shane G. (2008) 166 Cal.App.4th 1532, 1539; Cal. Rules of Court, rule 5.481(a)(4).) "Notice is meaningless if no information or insufficient information is presented to the tribe." (In re S.M. (2004) 118 Cal.App.4th 1108, 1116, fn. omitted.) "The juvenile court must determine whether proper notice was given under ICWA and whether ICWA applies to the proceedings. [Citation.] We review the trial court's findings for substantial evidence. [Citation.]" (In re E.W. (2009) 170 Cal.App.4th 396, 403-404.)
Here, both parents indicated that they had possible Indian heritage. Mother specifically identified Indian heritage with the Cherokee and Sioux tribes. And, Father identified the Blackfeet tribe. However, it is undisputed that CFS failed to provide ICWA notices to the Cherokee and Sioux tribes. It appears that only the Blackfeet tribe was provided notice of the proceedings in connection to Father and the paternal side of the family. The record does not contain any evidence regarding notice, receipt of notice, or reply from the Cherokee or Sioux tribes. Because CFS did not notify any Cherokee or Sioux tribes regarding Q.G. after Mother indicated she might have such heritage, we conditionally reverse the court's order terminating parental rights and remand the matter with directions to the juvenile court to ensure that CFS complies with the notice requirements of the ICWA and related California law. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704-705, 711.)
IV
DISPOSITION
The order terminating parental rights is conditionally reversed and a limited remand is ordered. Upon remand, the juvenile court shall direct CFS to send ICWA notices to all relevant tribes in accordance with the ICWA and California law. CFS shall thereafter file return receipts for certified mail for the ICWA notices, together with any responses received. If no responses are received, CFS shall so inform the court. The court shall determine whether the ICWA notice requirements have been satisfied and whether the child is an Indian child. If the court finds the child is not an Indian child, it shall reinstate the order terminating parental rights. If the court finds the child is an Indian child, it shall conduct all further proceedings in compliance with the ICWA and related California law.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. MILLER
J.