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In Re C.R. et al., Persons Coming Under the Juvenile Court Law. v. B.R

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Siskiyou)


May 3, 2011

IN RE C.R. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SISKIYOU COUNTY HUMAN SERVICES DEPARTMENT, PLAINTIFF AND RESPONDENT,
v.
B.R., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. SCSCJVSQ095085701, SCSCJVSQ095085801)

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

In re C.R.

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

B.R. (mother) appeals from the juvenile court's orders terminating her parental rights and setting the matter for adoption as to K.R. (an 11-year-old girl), and creating a legal guardianship with the specific goal of adoption as to C.R. (a 13-year-old girl). (Welf. & Inst. Code, § 366.26.)*fn1

Mother contends: (1) the record fails to show that proper notice was given under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)); (2) the court erred by failing to make a visitation order as to C.R.; and (3) the court erred by terminating mother's parental rights as to K.R. because the sibling relationship exception to adoption applied.

Respondent Siskiyou County Human Services Department (the Department) concedes the first two points, but asserts that the sibling relationship exception to adoption did not apply. Agreeing with the Department on all three issues, we reverse and remand for further proceedings as to ICWA and direct the juvenile court to make a specific order of visitation as to C.R. We affirm the court's orders in all other respects.

FACTUAL AND PROCEDURAL BACKGROUND

This is the second appeal in this case. In our opinion filed in the first appeal, which we judicially notice (Evid. Code, § 459), we considered mother's claims of error arising out of the jurisdiction/disposition hearings and the six-month review hearing. (In re C.R. et al. (Jan. 31, 2011, C062568/C063776 [nonpub. opn.]).) We take the facts through that point in the proceedings from our prior opinion.

Proceedings Through the Six-Month Review Hearing

The minors, then 11 and nine years old, were detained in May 2009 after mother left them alone at home in filthy and unsafe conditions while she went out drinking with acquaintances. (In re C.R. et al., supra, C062568/C063776.)

At the detention hearing, the juvenile court ordered the minors formally detained. The court found that the minors' alleged fathers (ex-husbands of mother who lived out of state) were presumed fathers. Because mother claimed Cherokee ancestry, the court ordered an ICWA inquiry. (In re C.R. et al., supra, C062568/C063776.)

At the jurisdiction hearing in June 2009, the juvenile court found the allegations of the section 300 petition true. (In re C.R. et al., supra, C062568/C063776.) Mother signed a mediation agreement obliging her to participate in alcohol and drug assessment, follow recommended treatment, visit the minors twice a week, continue individual counseling, take prescribed medication, attend parenting classes, and go to at least three 12-step meetings a week. (In re C.R. et al., supra, C062568/C063776.)

At the contested disposition hearing in July 2009, the juvenile court ordered the minors' current foster home placement continued, with reunification services for mother and the fathers.*fn2 The court found ICWA inapplicable because the noticed tribes had all responded that the minors were not members or eligible for membership. (In re C.R. et al., supra, C062568/C063776.)

Before the six-month review hearing, the Department reported that the minors were doing well in foster care and their foster parents would consider guardianship or adoption should reunification fail; however, both minors still wanted to live with mother. (In re C.R. et al., supra, C062568/C063776.) Mother had made "moderate" progress on her case plan, but had also gone through a series of unhealthy relationships with men, had been involved in repeated episodes of violence, had not found stable housing, and had not yet shown significant improvement as to substance abuse. (In re C.R. et al., supra, C062568/C063776.)

At the contested six-month review hearing, the juvenile court ordered the minors' continued placement in foster care and further reunification services to mother. (In re C.R. et al., supra, C062568/C063776.)

Proceedings after the Six-Month Review Hearing

The Department's 12-month permanency hearing report, filed April 30, 2010, recommended terminating services to mother and setting a section 366.26 hearing. The minors were well adjusted to their foster home, in which they had now lived for a year. Mother continued to engage in unhealthy relationships with men; she continued to abuse alcohol and had failed to follow through with treatment or to comply with testing requirements; her progress in counseling was limited; she had not yet begun a parenting program; and her visitation with the minors was irregular and marred by inappropriate conduct.

On June 10, 2010, after a contested 12-month permanency hearing, the juvenile court terminated mother's services and calendared a section 366.26 hearing for September 27, 2010 (later reset to October 21, 2010).

The Department's section 366.26 report, filed September 17, 2010, recommended terminating mother's parental rights and setting the matter for adoption as to K.R., but creating a legal guardianship with a specific goal of adoption as to C.R.

Mother was living in a motel, was not in contact with the Department, had recently been arrested for public intoxication, had been dropped from a parenting program for non-participation, and still behaved inappropriately during her visits with the minors (now reduced to twice a month).

The minors were very close. They were strongly bonded to their foster parents, who provided well for all their needs and wished to adopt them. The state Adoptions Services Bureau recommended a permanent plan of adoption for both minors. However, C.R., who could legally object to adoption because she was over 12 years old (§ 366.26, subd. (c)(1)(B)(ii)), apparently still hoped to reunify with mother. Therefore, the Department recommended that the foster parents be appointed her legal guardians, with a specific goal of adoption.

At the section 366.26 hearing on October 21, 2010, social worker Jennifer Moody testified that C.R. seemed ambivalent about adoption because she felt that it would divide her loyalties between mother and the adoptive parents. However, Moody had recently been informed that C.R. had resolved her ambivalence and no longer opposed adoption.

The minors' counsel stated that if C.R. were called to testify at the hearing, he believed she would indicate a preference for a "planned permanent living arrangement" rather than adoption.

County counsel stated that the Department did not recommend adoption for C.R. now, but requested that the court maintain jurisdiction in both cases so that the Department could seek adoption later if C.R. decided she wanted it. County counsel asserted that the recommended orders would not disrupt the sibling relationship, since the minors would remain in the same home and might eventually be adopted by the same parents.

Mother's counsel argued that the proposed orders would substantially interfere with the minors' sibling relationship, in particular their "long-term emotional interest, as compared to the benefit of legal permanence through adoption" (§ 366.26, subd. (c)(1)(B)(v)), because the orders would immediately create a different legal status for C.R. than for K.R., and the minors might be separated if C.R. was not adopted. Mother's counsel also found it troubling that the social worker had not "specifically addressed this with the children."

County counsel replied that even if the minors lived in different homes, they would not necessarily lose contact. In any event, K.R.'s best interest would be served by adoption at this time, even if mother later rehabilitated and C.R. went back to live with her.

The juvenile court found that the maintenance of the sibling relationship was in K.R.'s best interest, but there was no showing that adoption would interfere with the relationship. The court noted that the sisters would remain in the same home, and it was a distinct possibility that both would be adopted by the foster family. Any possibility of future interference with the relationship was too vague and speculative to "derail the adoption plan" for K.R. Therefore, the court adopted the recommended orders as to both minors.

Mother's counsel asked the juvenile court to address visitation, proposing a schedule of one visit per week. County counsel proposed that the court order visitation with K.R. once every two weeks and that visitation with C.R. should be left to the legal guardians' discretion. The court adopted county counsel's proposal, stating: "With regard to [C.R.], the court is not going to make a specific order but indicate to the guardians that it's going to be at their discretion, and I would think it would be likely that visits would probably correspond with [K.R.]'s[.]"

The juvenile court thereafter entered written orders terminating mother's parental rights and creating a plan of adoption as to K.R., and ordering legal guardianship with a specific goal of adoption as to C.R. The court also issued letters of guardianship to the foster parents as to C.R.

DISCUSSION

I

Indian Child Welfare Act

In our prior opinion, we concluded that the matter had to be reversed because the record did not include the ICWA notice sent to the tribes. (In re C.R. et al., supra, C062568/C063776.) Mother renews the issue in this appeal.

Because the section 366.26 hearing giving rise to this appeal was held before we filed our prior opinion, and the juvenile court and the parties did not discover the ICWA issue, the record on appeal still does not contain copies of the notice sent to the tribes. Therefore, as the Department concedes, we must reverse and remand this issue to the trial court for further proceedings. (§ 224.2, subd. (c); Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 266-267.)

If the juvenile court determines, after examining the ICWA notice provided to the tribes, that it was legally sufficient, the court shall reinstate its ruling that ICWA does not apply, along with all further orders and findings (except as specified below in part II of the Discussion). If the juvenile court determines that the notice given was legally insufficient, the court shall vacate its ICWA ruling and shall require the Department to re-notice the tribes; it shall also vacate all further orders in the case until ICWA has been fully complied with.

II

Visitation for C.R.

Mother contends that the juvenile court abused its discretion by leaving her visitation with C.R. within the foster parents' discretion. The Department agrees. We agree with both parties.

When the juvenile court has placed a minor in a permanent plan of legal guardianship, the court is required to make a visitation order for the parents unless the court finds by a preponderance of the evidence that visitation would be detrimental to the minor. (§ 366.26, subd. (c)(4)(C).) Because there was no such finding, the court was required to make a visitation order for C.R. with mother.

When a visitation order delegates to a third party the discretion to determine whether visitation will occur, it is an abuse of discretion. (In re Chantal S. (1996) 13 Cal.4th 196, 213-214; In re M.R. (2005) 132 Cal.App.4th 269, 274; In re Moriah T. (1994) 23 Cal.App.4th 1367, 1374.) However, the court may allow the legal guardians to determine the "reasonable conditions" of visitation -- i.e., "the details of visitation, including time, place and manner thereof." (In re M.R., supra, 132 Cal.App.4th at p. 274; In re Moriah T., supra, 23 Cal.App.4th at p. 1374.)

Here, the juvenile court's order gave C.R.'s legal guardians the discretion to determine whether mother would be allowed to visit C.R. This was improper. Such absolute discretion would necessarily include the legal guardians deciding that it would be detrimental to C.R. to permit mother to visit her -- a decision they would not be entitled to make absent a finding of detriment by the juvenile court.

On remand, the juvenile court is directed to make an order of visitation for C.R. and mother. (In re Hunter S. (2006) 142 Cal.App.4th 1497, 1505; In re M.R., supra, 132 Cal.App.4th at p. 274; In re Moriah T., supra, 23 Cal.App.4th at p. 1374.)

III

Sibling Relationship Exception to Adoption

Mother contends that the trial court erred by rejecting her claim that the sibling relationship to adoption applied. (§ 366.26, subd. (c)(1)(B)(v).) We disagree.

At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)

The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A. (2007) 152 Cal.App.4th 987, 998; In re Zachary G. (1999) 77 Cal.App.4th 799, 809; Cal. Rules of Court, rule 5.725(e)(3).) We uphold a juvenile court's ruling declining to find such an exception if the ruling is supported by substantial evidence. (In re Zachary G., supra, 77 Cal.App.4th at p. 809.)

The sibling relationship exception to adoption applies if "[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).) A parent appealing the termination of parental rights has standing to raise this exception. (In re Erik P. (2002) 104 Cal.App.4th 395, 402.)

The juvenile court found that mother had not shown any probability of substantial interference with the relationship between K.R. and C.R. because they would continue to live in the same home with foster parents who were devoted to both and hoped to adopt them both eventually. Furthermore, as the court also found, even if C.R. was not adopted by those foster parents and lived in a different home, there is no evidence in the record to suggest that the siblings would lose contact with each other. The court's factual findings are clearly supported by substantial evidence.

So far as mother asserts that substantial interference with the sibling relationship might occur because the children's different legal statuses would somehow estrange them from each other emotionally, she cites no authority for this proposition, and her speculation is unsupported by any evidence.

But even if there is some theoretical possibility that the different dispositions as to the two minors might lead to substantial interference with the sibling relationship, mother has shown no evidence that the benefits to K.R. from adoption would not outweigh any possible interference with the relationship. (See In re Jacob S. (2002) 104 Cal.App.4th 1011, 1018-1019 (disapproved on another ground in In re S.B. (2009) 46 Cal.4th 529, 537, fn. 5).)

Mother has not shown that the juvenile court erred by finding that the sibling relationship exception to adoption did not apply.

DISPOSITION

The matter is reversed and remanded with directions for further proceedings, as stated in part I of the Discussion. If the juvenile court finds that the tribes have not received sufficient notice under the Indian Child Welfare Act, the court shall direct that the tribes be re-noticed and shall vacate all current orders until such time as the Indian Child Welfare Act has been complied with. If the court finds that the tribes have received sufficient notice, the court shall reinstate its Indian Child Welfare Act findings and all other findings and orders, except that the court shall make a new order as to visitation with respect to C.R., as explained in part II of the Discussion.

We concur: RAYE, P. J. HULL, J.


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