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In re M.B.

March 22, 2010


APPEAL from the Superior Court of Riverside County. Bradley O. Snell, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed. (Super.Ct.No. RIJ102216).

The opinion of the court was delivered by: Ramirez, P.J.



D.B., father, and C.B., mother, appeal from a judgment terminating their parental rights to M.B. M.B.'s four older half-siblings were previously freed from parental custody and control after D.B. molested his 14-year-old stepdaughter and the parents failed to reunify. Mother was required to keep her children away from D.B., a registered sex offender, but continued her relationship with him, resulting in the birth of M.B. M.B. was made a dependent due to his siblings' neglect and sexual abuse, and services were denied, with the concurrence of the Choctaw Nation of Oklahoma (the Tribe), with which father was an enrolled member.

Subsequently, the court conducted a hearing to select and implement a permanent plan of adoption. (Welf. & Inst. Code,*fn1 § 366.26.) At the hearing, the juvenile court applied the Indian Child Welfare Act (ICWA), which requires the expert opinion of an Indian expert that continued custody of the child by the parent or Indian custodian would result in serious emotional or physical damage to the child. Both appeal the judgment. Father argues the judgment must be reversed because the Indian expert did not conduct an adequate investigation. Mother joins this challenge. We affirm.


Prior to the birth of M.B., mother and father lost custody of four other minors.*fn2 The three oldest children were made dependents due to mother's neglect, and they were returned to her custody in 2002. The following year, the children were removed again, this time due to allegations that father had molested the oldest stepchild, and mother failed to protect her. In the meantime, mother gave birth to a son who was added to the prior dependency and removed from mother's custody due to risk of harm relating to father's sexual abuse of a sibling and mother's neglect. Parental rights to the older four children were terminated on January 23, 2006.

M.B., the subject of the current dependency proceedings, was born the following year. On July 17, 2007, M.B. (the child) was taken into temporary custody due to risk of sexual abuse based on the sibling's sexual abuse, and because mother maintained a relationship with father, a registered sex offender. A dependency petition was filed on July 19, 2007, alleging neglect and failure to protect (§ 300, subd. (b)), relating to the risk of molestation arising from mother's cohabitation with father, a registered sex offender, the parents' history of substance abuse, and the parents' failure to reunify with the older children. It was further alleged that the minor's siblings had been abused and neglected, placing him at risk of similar harm. (§ 300, subd. (j).)

The trial court found that ICWA applied at the time of the detention hearing, and made the appropriate findings to justify removal of an Indian child from his parents. The tribe intervened on August 21, 2007. At the jurisdiction hearing which was conducted on January 8, 2008,*fn3 the court struck the neglect and failure to protect allegation (§ 300, subd. (b)), and made a true finding that M.B. was a dependent due to the abuse or neglect of his siblings. (§ 300, subd. (j).) The court found that continued custody by his parents was likely to cause M.B., an Indian child, serious physical damage, and that active efforts to prevent removal were unsuccessful. M.B. was removed from his parents' custody and services were denied on the basis of the order terminating parental rights to the child's siblings (§ 361.5, subd. (b)(10)), and father's conviction of a violent felony. (§ 361.5, subd. (b)(12).) The tribe agreed with the recommendation to deny services. The court scheduled a hearing to select and implement a permanent plan of adoption. (§ 366.26.)

The section 366.26 hearing was continued several times to determine placement of M.B., and to allow home evaluations of out-of-state relatives. On May 7, 2008, at a permanent plan review hearing (§ 366.3), the court ordered the Department of Public Social Services (DPSS) to look into placement of M.B. in the same adoptive home as his siblings and half-sibling. Although DPSS felt M.B. was better off in a placement by himself, on September 16, 2008, the court ordered that M.B. be placed in the siblings' home.

In November 2008, M.B. had adjusted well to the Indian-approved home where his siblings and half-sibling lived and the parents continued monthly visits. However, the section 366.26 hearing had to be continued further due to lack of a declaration by an Indian expert. In the meantime, the home study of the prospective adoptive parents that had been completed in March 2007 relating to the older siblings was amended to include M.B., and the adoption assessment report was prepared. However, by January 2009, the adoptive parents experienced financial and marital problems, and the adoptive father informed DPSS he had second thoughts about adopting. The adoptive mother was still committed to adoption, and DPSS approved her request to adopt M.B. on her own.

On May 14, 2009, the Declaration of an Indian Expert was filed along with an addendum to the report prepared for the 366.26 hearing. The declaration set out the Indian expert's qualifications, and explained that the expert had spoken with both the Tribe's social worker and the DPSS social worker, visited the minor, and reviewed the social worker's reports. In the opinion of the Indian expert, continued custody of M.B. by his parents would result in substantial danger to the physical health, safety, protection or physical or emotional well-being of the minor and that active efforts had been made by the social worker to prevent the breakup of the Indian family.

On June 1, 2009, the section 366.26 hearing took place. Initially, all parties stipulated to admission of the reports, including the Declaration of the Indian expert. However, after the case was closed to evidence, father argued that the Indian expert's investigation was inadequate, in addition to arguing that adoption would be detrimental due to the existence of a beneficial parent-child relationship. DPSS reopened its case and called the Indian expert as a witness to testify about her specific recommendation that parental rights be terminated. During the parents' cross-examination of the Indian expert, she expanded on the investigation described in her declaration, acknowledging that she normally does not speak to the parents.

At the conclusion of the hearing, the court found beyond a reasonable doubt that M.B. is adoptable, that active efforts had been made to provide remedial services and rehabilitative programs but that such efforts were unsuccessful; that continued custody of the child by the parents was likely to result in serious emotional and physical damage to the child; and ...

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