IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT Sacramento
January 6, 2011
IN RE J.H., A PERSON COMING UNDER THE JUVENILE COURT LAW.
SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
L.H., DEFENDANT AND APPELLANT.
Super. Ct. No. JD228753
The opinion of the court was delivered by: Nicholson , J.
In re J.H. CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115
L.H., mother of the minor, appeals from orders terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395 (undesignated statutory references are to the Welfare and Institutions Code).) Appellant argues new counsel should have been appointed for the minor because the divergent permanent plans for the minor and the minor's sibling created an actual conflict of interest; the juvenile court erred in terminating parental rights because the evidence showed termination would substantially interfere with the sibling relationship; and the Sacramento County Department of Health and Human Services (Department) failed to comply with the inquiry and notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)). We shall affirm.
The Department filed a petition to place the minor J.H., age two, and her eight-year-old half sibling in protective custody in December 2008 due to domestic violence in the home. The father absconded with the minor; the half sibling was placed with her paternal grandmother. Appellant admitted the allegations of the petition and the half sibling was adjudged a dependent child in July 2009. The half sibling subsequently disclosed that the father had sexually abused her.
In November 2009, the minor and the father were located in Georgia. The minor was returned to California and placed in foster care. The father was returned to California and placed in custody on sexual abuse charges. He appeared in the juvenile court in December 2009 and claimed Cherokee Indian heritage. The court ordered the Department to send notices to the tribes.
The social worker's jurisdiction/disposition report in December 2009 stated the minor was doing well in placement, had weekly supervised visits with appellant and apparently remembered her half sibling. The report further stated the father was not entitled to services due to absconding with the minor and his pending felony case. The report also concluded appellant was not entitled to services, having aided the father to abscond with the minor and having failed to benefit from 12 months of services for the half sibling.
A declaration in December 2009 by the paralegal responsible for ICWA notice stated appellant claimed no Indian heritage. The father claimed Cherokee heritage through his father. He had some historical information, including names filling a four-generation family tree, but had no immediate relative to contact for further information because his mother and sister were deceased. The father did provide the name of a cousin, D.F., and a seven-digit telephone number and said that D.F. resided in North San Juan, California. However, when the paralegal called the number, there was no response. The father also gave the name of his uncle who reportedly lived in Prescott, Arizona, but provided no further contact information. There was no apparent effort to contact the uncle. The paralegal spoke to appellant who said she would try to get further information but had not done so by the time notice was sent. The notices contained all the ancestor information the father made available to the paralegal.
At a hearing in January 2010, the father made corrections to the ICWA notice and the new information was sent to the tribes. In February 2010, the paralegal filed the tribes' responses with the court. None of the tribes considered the minor an Indian child.
A declaration by the paralegal in March 2010 provided additional information on efforts to acquire information about the father's ancestry. The paralegal spoke to the father's maternal cousin, who had no information about the paternal grandmother, and made unsuccessful attempts to contact the cousin's sister. The paralegal called the phone number for D.F. but used a local area code rather than the one for North San Juan where he may have lived. Four months later, the paralegal tried to call D.F. using that area code and also did a directory search for names of additional cousins that might have lived nearby. None of these efforts produced additional information on the father's ancestry.
At the jurisdiction/disposition hearing for the minor, the juvenile court found ICWA notice was complete and the minor was not eligible for tribal membership, sustained the petition as amended and denied services to both appellant and the father. The court set a selection and implementation hearing.
The July 2010 report for the selection and implementation hearing stated the minor was generally adoptable and her current caretakers were willing to adopt her. The permanent plan for the half sibling, who continued to live with her paternal grandmother, was guardianship. The half sibling wanted to maintain her relationship with the minor. The minor saw the half sibling at visits with appellant. Visits were once a month, having been recently reduced from once a week.
At the selection and implementation hearing in August 2010, minor's counsel stated the minor's prospective adoptive parents intended to maintain contact with the half sibling. Counsel stated the contact was important for the half sibling. Appellant wanted continued contact with the minor as well. The father objected to termination of parental rights and thought termination might jeopardize the minor's ability to stay in contact with the biological family over time. The court found the minor was likely to be adopted and addressed both the "benefit" exception (§ 366.26, subd. (c)(1)(B)(i)) and the "sibling" exception (§ 366.26, subd. (c)(1)(B)(v)) to the preference for adoption as a permanent plan. The court found appellant had regular contact with the minor but insufficient benefit to the minor in continued contact with appellant to outweigh the benefits of adoption. As to the sibling relationship, the court concluded the minor would have postadoptive contact with the half sibling and there was insufficient evidence to cause the court to determine it would be detrimental to the minor to terminate parental rights. The juvenile court ordered termination of parental rights and selected adoption as the permanent plan.
Appellant contends the court erred in failing to appoint conflict counsel to represent the minor because an actual conflict had arisen due to the divergent permanent plans.
While we assume appellant has standing to raise the issue on appeal and that she has not forfeited the argument by failing to raise it in the trial court, the argument is unpersuasive. (But see In re Daniel H. (2002) 99 Cal.App. 4th 804, 810-811 [parent lacks standing to raise issue of conflict of interest in minor's counsel where parental rights terminated]; In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502.)
The issue of separate counsel for multiple minors was addressed by the Supreme Court in In re Celine R. (2003) 31 Cal.4th 45. The court held "that the court may appoint a single attorney to represent all of the siblings unless, at the time of appointment an actual conflict of interest exists among them or it appears from circumstances specific to the case that it is reasonably likely an actual conflict will arise. After the initial appointment, the court must relieve counsel from the joint representation when, but only when, an actual conflict of interest rises." (Id. at p. 50.) For an actual conflict to arise at the permanency planning stage, there must be a showing that the siblings have different interests which would require their attorney to advocate a course of action for one child which has adverse consequences to the other. Standing alone, the fact that siblings have different permanent plans does not necessarily demonstrate an actual conflict of interest. (Cal. Rules of Court, rule 5.660(c)(1)(C)(v).) Further, "error in not appointing separate counsel for a child or relieving conflicted counsel" requires reversal only if it is reasonably probable the outcome would have been different but for the error. (In re Celine R., supra, 31 Cal.4th at pp. 59-60.)
Appellant's claim of an actual conflict is that minor's counsel's advocacy for adoption of the minor was "at odds" with the duty owed to the half sibling who wished to maintain her sibling relationship with the minor. In support of this claim, appellant relies on Carroll v. Superior Court (2002) 101 Cal.App.4th 1423, 1427 (Carroll), in which the court found an actual conflict when one child, whose plan was guardianship, wanted to maintain a relationship with siblings whose plan was adoption. However, Carroll was decided prior to the California Supreme Court's decision in In re Celine R., supra.
In Celine R., the Court explained that the sibling relationship exception only allows consideration of whether severing the relationship could cause detriment to the child being considered for adoption, and not whether it would cause detriment to the siblings. (In re Celine R., supra, 31 Cal.4th at p. 54.) The Court's explanation of the scope of the exception raises significant questions about the continuing viability of that portion of the decision in Carroll, supra, 101 Cal.App.4th 1423, and claims such as the one here. (In re Celine, supra, at p. 60.)
The question was whether the minor's interest in maintaining a relationship with the half sibling outweighed the benefit to the minor of permanence and stability in an adoptive home. While there was some evidence termination might have some detrimental effect on the half sibling, her interests were not at issue when considering adoption of the minor. Counsel's advocating for the minor's interest in adoption had no adverse consequence to the half sibling's interests and there was no actual conflict which affected counsel's representation. Any suggestion of a "conflict" arose not from dual representation, but from the competing self-interests of the minor and the other parties which routinely are dealt with when selecting a permanent plan.
Finally, any error in failing to appoint separate counsel for the minor was harmless. There is no reasonable probability the outcome would have been different if the minor and the half sibling had separate counsel. (In re Celine R., supra, 31 Cal.4th at pp. 59-60.) The minor's counsel would have argued for adoption. No one suggests the minor was not adoptable or that adoption was not in her best interests. The half sibling's counsel would have argued for guardianship for the sibling since that was clearly the plan which best met her needs. A sibling exception argument by either the half sibling or appellant would have been unsuccessful because, as we have seen, the only evidence of possible detriment from termination of parental rights was to the half sibling, not the minor. Even with separate counsel, there would have been no difference in the selection of the respective permanent plans.
Appellant asserts the juvenile court erred in failing to find the sibling exception to the preference for adoption had been established.
We note that no one actually raised the sibling exception at the hearing. No evidence was presented of detriment to the minor from termination of parental rights and there was no argument that the exception should apply. Accordingly, the issue was forfeited. (In re Dakota S., supra, 85 Cal.App.4th at pp. 501-502.)
However, the juvenile court, apparently believing that questions of potential exceptions to the preference for adoption must be addressed whether the parties raise them or not, discussed the question of the sibling exception. The court, rather than analyzing the factors in section 366.26, subdivision (c)(1)(B)(v), simply relied on assurances of continued contact between the minor and the half sibling in concluding the exception did not exist. Assuming arguendo that the court's gratuitous ruling preserved the issue on appeal, we conclude from the evidence in the record that the sibling exception has not been established.
At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must choose one of the several "'possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]' [Citation.] 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 only limited circumstances which permit the court to find a "compelling reason for determining that termination of parental rights would be detrimental to the child." (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(e)(3); Evid. Code, § 500.)
Termination of parental rights is detrimental to the child 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).)
As we have seen, the court must consider the interests of the adoptive child, not the siblings, in determining whether termination would be detrimental to the adoptive child. (In re Daniel H., supra, 99 Cal.App.4th at p. 812; In re Celine R., supra, 31 Cal.4th at pp. 49-50.) "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. (2002) 101 Cal.App.4th 942, 952.)
The evidence here was that the minor and her half sibling were together much of the time during the minor's first two years of life and shared experiences. However, after the initial petition was filed, the father absconded with the minor and she had no contact with her half sibling for almost a year. Thereafter, the minor was placed in foster care and did not see her half sibling except at visits with appellant. While the half sibling wanted to maintain a relationship with the minor and counsel described the contact as important to the half sibling, there was no evidence the minor had similar feelings. Based on the record, the relationship cannot be described as close or strong and there is no evidence the minor would suffer any detriment from severing the relationship. The evidence before the court did not establish the sibling exception.
Appellant argues the court erred in finding compliance with the ICWA because the Department did not fulfill its duty of reasonable inquiry and the error was prejudicial. Appellant contends the paralegal's failure to use the correct area code in attempting to contact the father's cousin and failure to document any attempt to contact the father's uncle in Prescott, Arizona demonstrate inadequate inquiry.
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the Department have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (§ 224.3, subd. (a); Cal. Rules of Court, rule 5.481(a).) If there is reason to know the child may be an Indian child, the Department must make further inquiry by interviewing parents and "extended family members" to gather information necessary to complete the notice of the proceedings which is sent to the tribe and to contact any other person who reasonably could have information regarding the minor's eligibility for tribal membership.*fn1 (Cal. Rules of Court, rule 5.481(a)(4)(A) and (C).)
Upon receiving information that the father claimed Indian heritage, the Department sought information from him about his ancestry and vital statistics about his ancestors which could help the tribe determine whether the minor was eligible for tribal membership. The father provided extensive information about his ancestry but had little or no information about dates and places of birth and death of his ancestors. Because his mother and sister were deceased, he referred the social worker to several cousins and an uncle for additional information and provided a telephone number and last known city of residence for one cousin and the name of the city in Arizona where the uncle lived. The paralegal did make initial efforts to contact the cousin although she used a local area code rather than the one for the city where the cousin lived.*fn2 She also asked appellant for information. Within four months, the paralegal made additional inquiries, first trying to contact the cousin, D.F., with the area code of the city where he was last known to live, then searching for additional cousins in the area and finally contacting the father's maternal cousins. No additional information was developed from any of these sources. There is no evidence whether the paralegal did or did not try to contact the father's uncle in Prescott, Arizona. However, the paralegal had no address or telephone number for that individual.
At some point inquiry must end. (Cf. In re Levi U. (2000) 78 Cal.App.4th 191, 198-199.) It is not reasonable to expect the Department to expend limited resources tracking down every extended family member in an attempt to discover details about family history. This is not a case where little or no effort was made or where the necessary information was already in the hands of the Department. (In re D.T. (2003) 113 Cal.App.4th 1449, 1454-1455.)
The father filled out the ICWA questionnaire and a family tree. He gave corrected information to add to the notice. He provided names of extended family members to contact. The paralegal made efforts to contact them but was unable to do so, or, if contact was made, no further information was forthcoming. Appellant speculates that the individuals the paralegal did not speak to may have provided more information. Names of four generations of ancestors claiming Cherokee heritage were sent to the tribes. No tribe was able to connect any name to a lineage which would lead to a conclusion the minor was an Indian child. In light of the fact that no one except the father was able to give any information, the speculation is not persuasive. Under the circumstances, the Department did not fail to make adequate inquiry about the father's possible Indian ancestry.
Finally, appellant relies on D.B. v. Superior Court (2009) 171 Cal.App.4th 197, 206-208 in arguing reversal is required. In D.B., the case was reversed for further notice when additional ancestral information became available during testimony. The case is factually distinguishable and of no assistance in resolving the current claim.
The orders of the juvenile court are affirmed.
RAYE , P. J.
BUTZ , J.