(Santa Clara County Super. Ct. Nos. JD 18556; JD18557). Hon. Shawna Schwarz.
The opinion of the court was delivered by: Elia, J.
CERTIFIED FOR PUBLICATION
Dependency proceedings (Welf. & Inst. Code, § 300 et seq.)*fn1 were commenced on behalf of siblings C.B. and M.B. ("children") and their older sister C. The juvenile court terminated parental rights as to the children and selected a permanent plan of adoption. (See § 326.26.) Mother C.K. ("mother") and father C.B. ("father") appeal from the order terminating their parental rights. (§ 395.)
On appeal, mother contends that the judgment terminating parental rights must be reversed because (1) substantial evidence does not support the juvenile court's determination that the parent-child relationship exception did not apply (§ 366.26, subd. (c)(1)(B)(i)), (2) substantial evidence does not support the juvenile court's determination that the Indian child exception did not apply (§ 366.26, subd. (c)(1)(B)(vi)), and (3) adequate notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) was not provided to the Choctaw and Seneca tribes. Father joins in these arguments.
On appeal, father contends that the judgment terminating parental rights must be reversed because (1) substantial evidence does not support the juvenile court's determination that the sibling relationship exception did not apply (§ 366.26, subd. (c)(1)(B)(v)) and (2) the court lacked substantial evidence to find that the Santa Clara County Department of Family and Children's Services ("DFCS" or "Department") engaged in "active efforts" to enroll the children in the Cherokee Nation (§ 361.7; Cal. Rules of Court, rule 5.484 (c)).*fn2 Mother joins in these arguments.
We reverse for limited purposes, specifically to allow adequate notice to be provided to the Seneca tribes and to allow the court to determine, under the proper standard, the applicability of the parent-child relationship exception to termination of parental rights.
On October 19, 2007, juvenile dependency petitions were filed on behalf of C.B. and M.B. They alleged jurisdiction on grounds of parental failure to protect (§ 300, subd. (b)) and no provision for support (§ 300, subd. (g)).
On October 23, 2007, amended juvenile dependency petitions (§ 300, subds. (b) and (g)) were filed on behalf of the children. On November 14, 2007, second amended juvenile dependency petitions (§ 300, subd. (b)) were filed on behalf of the children.
On December 31, 2007, third amended petitions (§ 300, subd. (b)) were filed on behalf of the children. The petitions alleged the following facts.
Mother had been incarcerated on October 18, 2007 and father was serving a 19 year prison sentence. On October 19, 2007, an emergency response social worker had placed the children in protective custody pursuant to a custody warrant. The protective custody warrant was issued because mother had left the children in the care of her boyfriend who was an inappropriate caretaker. The boyfriend had a significant criminal history and physical limitations that impeded his ability to care for the children. The children reported that the boyfriend slept all the time and drank beer. The boyfriend was facing eviction from a trailer park.
On October 1, 2007, an emergency response social worker had found the trailer home cluttered and large piles of debris outside. Sewage was leaking into the home due to a sewage system problem in the RV park. The trailer's condition presented a health hazard to the children that placed them at substantial risk.
Mother had substance abuse problems and mental health issues impeding parenting. She had admitted smoking marijuana and consuming alcohol and she was depressed and sleeping all day. Her untreated mental health issues placed the children at substantial risk of harm.
Mother was not meeting the children's basic needs. Their older sister C. had not attended school from September 24, 2007 to October 19, 2007 and she had previous unexcused absences. The children were usually dressed in dirty clothing and unkempt. The children were sometimes responsible for getting up and getting themselves to school in the morning, which involved crossing a major busy intersection without adult supervision.
On May 1, 2007, law enforcement had found the trailer in disarray with debris, clothing, trash and dirty dishes around. The refrigerator was "overrun with mold, mildew, and the smell of spoiled food." Law enforcement found a "marijuana pipe next to the door, a water marijuana pipe on the counter next to the children's clothing, and a broken glass drug pipe in the medicine cabinet above the toilet." The shower was covered with items and appeared unavailable for use. The children had been placed in protective custody and mother had been charged with cruelty to a child and the charges were pending.
The Gardner Family Care Center had been involved with the family since August 2, 2007. The family had been offered Differential Response Services through the center and the center had provided intensive weekly services, which had not stabilized the family.
According to the petitions, mother had a criminal history that included a DUI and driving without a license conviction on December 12, 2006, second degree burglary, petty theft, and false personation. Charges of false imprisonment and drunk in public against mother were also pending. Father had committed violence against the mother and had been arrested for domestic violence on December 24, 2004.
The Jurisdiction/Disposition Report, filed February 21 2008, reported six prior referrals to child welfare for the family between January 2002 and July 2007. The children had been placed in a foster home. Their older sister C. had been placed in a group home.
The third-amended dependency petitions were amended on their faces to delete the allegation that mother was charged with child endangerment and to instead state that mother had pleaded no contest to contributing to the delinquency of a minor pursuant to Penal Code section 272, subdivision (a), and was awaiting sentencing.
After the jurisdiction hearing, the juvenile court found the allegations of the third amended petitions, as amended, true and found the children were described by section 300, subdivision (b). At the disposition hearing, the court adjudged the children dependent children of the court. It ordered family reunification services for mother and, under section 361.5, subdivision (e), it ordered the DFCS to not provide family reunification services to father. The court ordered supervised visits two times a week for mother and supervised visits four times a year, with prison approval, for father.
On July 23, 2008, following the six-month status review, the court ordered the children to continue under the care, custody and control of the DFCS in foster placement and ordered the children and mother to continue receiving services from the family reunification program. The court ordered supervised visits of two hours twice a week for the mother and supervised visits four times a year, with prison approval, for father.
The status review report for the 12-month hearing provided the following information about mother. She had not maintained contact with the social worker and had missed several scheduled appointments. Mother had not enrolled in the recommended Advanced Parenting Program because she had not met with the social worker for several months. Mother had not attended individual counseling despite referrals for therapists and she had not complied with drug testing. Mother had stated she was attending AA/NA meetings regularly but she had not provided meeting attendance sheets and she had not provided contact information regarding her sponsor. Mother had failed to engage in an outpatient drug program as recommended. Mother had attended most of the classes for a domestic violence support group but had not obtained a certificate of completion.
On January 8, 2009, following the 12-month review, the court terminated family reunification services for mother. It ordered the children to continue under the care, custody and control of the DFCS for placement with an approved relative or non-relative extended family member. The court ordered supervised visits of two hours once a month in the county in which the children resided for mother and supervised visits four times a year, with prison approval, for father.
On June 15, 2009, the court held a hearing for purposes of ensuring compliance with ICWA notice requirements.
On September 9, 2009, mother's counsel told the court that mother needed the court's assistance with maintaining contact with her children, who were residing with their aunt and uncle in Bakersfield. Mother's counsel reported that mother could not reach the children by phone and their caretakers were not taking her calls. The court indicated that mother was entitled to talk to the children at least once a week and caregivers were required to make the children available for that contact. The court ordered parents to be present at contested section 366.26 hearing scheduled for October 28 and 29, 2009.
2. Section 366.26 Hearing
The juvenile court admitted into evidence and considered the "366.26 Report" (dated May 7, 2009), four addendum reports (a report dated May 7, 2009, a report dated August 17, 2009 and signed August 12, 2009, a report dated August 17, 2009 and signed August 14, 2009, and a report dated October 28, 2009), the curricula vitae of social worker Eva Jones-Ransom and ICWA expert Sean Osborn, the declaration of Sean Osborn, and two ICWA response letters.
The "366.26 WIC Report" provided the following history. Between October 2007 and December 2008, mother always attempted to attend the twice a week supervised visits with children but was often late due to transportation issues. The supervisors of the visits reported that mother was appropriate with the children and the children appeared to enjoy the visits. The children's older sister C. attended many of those supervised visits but "did not attend the visits regularly due to conflicts in her school schedule and other activities."
In January, after visitation had been reduced to once a month and before the children moved to Bakersfield, mother visited with the children. In February, mother received transportation funding and traveled to Bakersfield for a visit under the supervision of the paternal aunt. During the February visit, mother reportedly threatened to use mortar to blow up the DFCS building in San Jose. No visit was scheduled for March because the court had issued a temporary restraining order.
The report stated that mother and maternal grandmother C.K. had maintained regular phone contact with the children. The children had not had regular contact with their older sister C. The whereabouts of the sister C. were not known at the time of the report.
The aunt and uncle had "provided for all the children['s] needs" and had "continued to provide exceptional care for the children in the home" and the family had "demonstrated that they are very capable [of] caring for the children's needs." The family was "very patient, and loving towards the children," "very attentive" and able to give them "needed individual attention." The report stated that the children were "well bonded and attached to their caretakers" and "are secure and happy children" with them. It indicated that C.B. expressed love for his caregivers, he was excited about and content with being adopted by his aunt and uncle, and he believed he would be happy in their care. M.B. had felt relief that she would remain in their home with her brother. It was reported that the children had thrived in their current placement.
The May 7, 2009 Addendum Report provided the following additional information. The paternal aunt reported to social worker Kerri Avery, who was then handling the dependency cases, that mother had cancelled the April 2009 visit because mother missed the bus to Bakersfield. Mother failed to contact the Bakersfield social worker who was going to supervise the visit. Mother later explained to Avery that she had cancelled the visit because the bus was going to be more than two hours late.
The Addendum Report, dated August 17, 2009 and signed August 12, 2009, reported that mother had told the new social worker, Eva Ransom, that she did not visit the children in July because Avery had not provided funds for the bus. Mother had spoken to the children at least once or twice a week. Mother claimed that she was allowed to talk to the children for only a few minutes and the aunt required them to use the speakerphone so she could hear their conversation but the aunt stated that she allowed the children to speak privately. As to older sister C., the report stated that she "continue[d] to be on runaway status most of the time" and was not attending school. Ransom had received a phone call from mother, who said C. was staying with her and C.'s " 'pimp' was looking for her and had threatened her life if [C.] did not give him $500 dollars." Mother said she did not know the address where C. and she were staying.
The Addendum Report, dated August 17, 2009 and signed August 14, 2009, provided updated ICWA information.
The October 28, 2009 Addendum Report indicated that the aunt's and uncle's family and the children had moved to their new home and the children were doing well in school. M.B. stated she greatly enjoyed living with her aunt, uncle and cousins. She understood that adoption would mean not having to move again and her aunt and uncle would become her mother and father. M.B. liked visiting with her mother and talking with her on the phone a couple of times a week but indicated that talking with her twice a week was enough. C.B. said he said that he greatly enjoyed living with his aunt and uncle in their new home. He did not want to move anywhere else. He understood that, if he were adopted by his aunt, she would become his mother instead of his aunt. The report stated that mother had visited the children in Bakersfield during August and the visit had gone well.
The section 366.26 hearing took place in late October 2009. M.B, then nine years old, was called as a witness by mother. M.B. had lived with her aunt and uncle since January 2009 and, before that, she had lived in a foster home. Prior to being placed in the foster home, M.B. had lived in a shelter. Before the shelter, she had lived with her mother. At some other time, prior to January 2009, she had lived with her aunt and uncle without her mother. M.B. liked living with her aunt.
M.B. reported that when Avery was their social worker, they would call their mother whenever they wanted to. Now, she was only allowed to call her mother on Monday and Friday. She was always allowed to use the phone to call her mother. M.B. knew her mom's phone number and recited it from memory.
M.B. testified that she would feel mad if she was never permitted to call her mother again or if she was not able to visit her mother again. She testified that she had been looking forward to seeing her mother on this visit to San Jose. She understood that she was going right back to Bakersfield after court that day but said, "I would like to see my mom after court more." She indicated more than once that she would be sad if she was unable to see her mother again. M.B. would not like it if she could not see her mother any more after being adopted.
M.B. indicated that she had fun when her mother and she visited. Her mother usually brought them toys and they would play. She recalled a visit on her birthday when they played games and talked about her gifts and school. M.B. looked forward to visiting with her mother and sometimes tried to make her something. M.B. recalled being happy during a visit because she was finally able to give her mother a paper with writing and little hearts that she had made but she had forgotten to bring on the previous visit.
M.B. remembered living with her older sister C. for a short time but could not remember where. She wished she could live with C. and missed not living with her. She enjoyed seeing her sister but did not know how often she saw her. She indicated that she would be sad if she could not see her sister again.
C.B. was called as a witness by mother. He was 10 years old at the time of the hearing. He had been living with his aunt and uncle since January 2009. The last time he had seen his father was in January 2009 before going to live with his aunt and uncle.
C.B. indicated that he had visited with his mother that morning. He felt sad that he was returning to Bakersfield that day without any more visits. He would like to stay longer to visit again with his mother. Since moving to Bakersfield, he had visited with his mother six times including that morning's visit. During their visits, they "usually talk[ed] and play[ed] around."
C.B testified that they were only supposed to call mother two times a week. Previously, he had been permitted to call more often. He knew and recited his mother's phone number and his grandmother's two phone numbers. He indicated that he liked talking with his mother on the phone, the calls were important to him, and he made sure to get his twice a week calls. His aunt had never said no when he said he wanted to call his mother.
When asked how he feels about being adopted by his aunt and uncle, C.B. said, "I feel okay. As long as I could see my parents." When asked how he would feel if he were adopted but did not get to talk regularly with his mom on the phone, he replied, "I wouldn't like it." He would not like it if he were adopted and did not get to see his mother at least now and then. He confirmed that it was important to him to stay in contact with his mother.
C.B. remembered previously staying with his aunt and uncle without his mother for one year. His mother was able to visit and they had phone calls.
C.B. said he could not remember living with his older sister C. but he knew there was a period of time when they lived in the same house. He remembered playing with C. and going to the store with her and C. buying them food. C.B. thought his older sister was an important person in his life because she was his sister. He said he missed living with her and would like to be able to live with her again. He indicated that both his sisters were equally important because they were family and family was important to him. He indicated that he would be sad if he did not see his older sister again because he was "really close to her."
C.B. confirmed that his mother was also an important person in his life, explaining she was "also family and if it wasn't for her I wouldn't even be here." He said he would be sad if he was not able to see his mother again "[b]ecause I really love her." He enjoyed the time he spent with his mother. C.B. indicated he would be sad if he were unable to see his father again because "he's family and if it wasn't for him I wouldn't even have my name and I wouldn't be here."
Visiting and talking with both his mother and sister were important to C.B. His aunt and uncle allowed him to talk to his mother and sister and he had no reason to think that would ever change. He liked his aunt and uncle and agreed that even if he did not have a house with a big backyard, he would still like them.
The children's maternal grandmother C.K. was called as a witness by mother. Before the children moved to Bakersfield, the grandmother saw them about once every other week and she also saw them during most of the supervised visits with mother. She spoke to the children on the phone a couple of times a week.
Since the children had moved to Bakersfield, grandmother C.K. had rarely seen them. She had visited with them when they had returned to this area for court. She recalled that, during a June visit at the shelter, the children ran to mother and gave her big hugs and mother had hugged and kissed them. The children also hugged their older sister and they were mutually excited to see each other.
Until recently, the grandmother had spoken to the children by telephone whenever they wanted to call her or she called them. Sometimes she was by herself and sometimes she was with mother during her phone contacts with the children. Just recently, they were limited to talking twice a week between 5:00 and 7:00 on Monday and Friday. A couple of times, when the grandmother had called on days that were not her day to call, she had not been permitted to speak to the children. Grandmother C.K. believed that she would be denied contact with the children if they were adopted.
The grandmother had spoken to both M.B. and C.B. before their arrival in San Jose and they both had sounded very happy about seeing the family. She had seen the children that morning; they had run up and given their mother a hug and kiss.
Sean Hal Osborn, who was recognized as an expert under ICWA, testified on behalf of the DFCS.*fn3 In his declaration, which was also admitted into evidence, Osborn made clear that ICWA did not, at that time, apply because the children were not Indian children as defined by ICWA. Neither father nor the children were then members of the Cherokee Nation of Oklahoma. He stated that the "active efforts" requirement applies only when a child was an Indian child as defined under ICWA. In any event, he indicated that active efforts had been made and included but were not limited to court-ordered family reunification services for mother, which included basic parenting, individual counseling, drug testing, NA/AA meetings, and a domestic violence support group.
Osborn indicated in his declaration that he had spoken with a representative of the Cherokee Nation of Oklahoma. He had been told that termination of parental rights would not prevent the children from becoming members of the tribe. He also reported that the Cherokee Nation would not be opposed to adoption of the children by paternal relatives. It was his opinion that the Indian Child exception did not apply in this case.
Osborn further stated in his declaration that, "[a]lthough the Indian Child Welfare Act does not apply in this case at this point in time, the County had proceeded forward and complied as though this was an ICWA case." He summarized the circumstances and concluded that it was "clear that [C.B.] and [M.B.] would be at risk of serious emotional or physical damage if return[ed] to the care of either parent at this ...