In re K.E. & A.P. CA1/2 ( 2015 )

Filed 7/22/15 In re K.E. & A.P. CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
In re K.E. & A.P., Persons Coming Under
the Juvenile Court Law.
SONOMA COUNTY HUMAN
SERVICES DEPARTMENT,
Plaintiff and Respondent, A143595
v.
(Sonoma County Super. Ct.
SONIA E. and JOSE P., Nos. 3922-DEP, 3923-DEP)
Objectors and Appellants.
Appellant Sonia E. is the mother of dependent daughters K.E. and A.P. Appellant
Jose P. is the presumed father of A.P. Both Sonia E. and Jose P. appeal from the orders
terminating their parental rights according to Welfare and Institutions Code section
366.26.1 Sonia E. also appeals from the order denying her petition under section 388 to
have the children returned to her custody. We conclude the juvenile court did not abuse
its discretion when it summarily denied Sonia’s petition without conducting an
evidentiary hearing. We further conclude that substantial evidence supports the court’s
findings that K.E. and A.P. were adoptable, and that neither of the claimed exceptional
circumstances that might prevent adoption was established. Finally, we hold that any
1
Statutory references are to the Welfare and Institutions Code unless otherwise
indicated.
1
noncompliance with the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.
(ICWA)) is waived in circumstances where neither parent made a timely protest and the
child’s Tribe participated at all stages of the lengthy dependencies—and concurred in the
termination. In light of these conclusions, we affirm.
BACKGROUND
In May 2012, respondent Sonoma County Human Services Department
(Department) filed separate petitions in which it was alleged that by reason of her
“propensity for substance abuse,” Sonia E. was unable to protect and provide for K.E.
and A.P., thus bringing them within the scope of section 300, subdivision (b). The same
conclusion was alleged with respect to A.P. because of Jose P.’s “substance abuse
problem.” The children were promptly detained.
The combined jurisdictional and dispositional hearing was held in September
2012. The Department initially recommended that neither Sonia E. nor Jose P. receive
reunification services, but it was sufficiently impressed with the progress made by the
pregnant Sonia E. that it changed its recommendation. The reasons for this change were
explained by the case worker as follows:
“Ms. E[.] has greatly surprised this writer by her expansive embrace of recovery
principles, not only as verbalized but also as maintained in her behavior. She appears to
have had a true ‘awakening’ as described in the AA Big Book, and to have acted upon it.
The Big Book also refers to a complete reorganization of an individual’s personality,
such as is necessary to maintain recovery. Although much work remains to be done,
especially when it comes to relationship patterns and choices, Ms. E[.] is clearly on this
path. In particular, her lack of defensiveness and excuses is most unusual, and in stark
contrast to her earlier behavior.
“This writer has never before changed a Recommendation of Bypass[2] to that of
Reunification services, but Ms. E[.]’s progress is so exceptional that she is doing so now.
2
“Bypass” appears to be a bit of shorthand jargon, meaning that a parent can be
“bypassed,” that is, denied reunification services, for one of the 16 reasons enumerated in
subdivision (b) of section 361.5.
2
No one can foretell the future, of course, but this young woman may become one of the
few who truly succeed in turning their lives completely and permanently around. This
writer knows of several such ‘success stories,’ and, having witnessed it, knows that such
can and do evolve from quite unpromising beginnings. Indeed, who would have
predicted that a woman who had failed so many prior opportunities to enter treatment
would have such dramatic growth in so short a period of time once she did?
“This writer has learned through hard experience that true, sustained recovery is a
rarity. There are no guarantees, but she believes that Ms. E[.] has a shot at this. The
writer now recommends Reunification services in as strong of terms as she originally
recommended Bypass.”
As for Jose P., the case worker initially informed the court: “Mr. P[.] has obtained
work that prevents him from attending visits or DAAC [Drug Abuse Alternatives Center]
classes as scheduled, and has not attempted to make alternative arrangements that would
allow him to do so. (Note: DAAC classes are available in the evening for the
convenience of those who work during the day, and this writer would have attempted to
reschedule visits on weekends or at CPI in the evenings had the father requested it and let
her know what his work schedule is.) However admirable and even necessary Mr. P[.]’s
work ethic may be, it appears that he has made his choice, and that choice does not
include custody of his child.”
This too changed before the hearing. At the time she modified her
recommendation for Sonia E., the caseworker said this about Jose P.: “Mr. P[.] has
shown an interest in having a relationship with both girls, and is now participating in
services. He appears to be in very early recovery and to have an incomplete grasp of
basic recovery principles . . . and continues to externalize blame. The Department is
pleased that Mr. P[.] has chosen to take advantage of services offered to him as in the
best interests of the children, and funding is in place for DAAC treatment to continue
within the normal parameters of Department funding. However and especially given his
long history of addiction, past participation twice in residential treatment followed by
3
relapse, and minimal progress in the particulars of recovery beyond mere abstinence, this
writer is not prepared to change her Recommendation of Bypass as to Mr. P[.]”
Neither Sonia E. nor Jose P. appeared at the hearing, and the court made a finding
that “both parents have voluntarily absented themselves.” Through counsel, both
submitted on the social worker’s report, although counsel for Jose P. disagreed with the
dispositional recommendation. After argument was completed, and as the court was
about to rule, Jose P. appeared. Following unreported discussions, the caseworker
changed her recommendation as to him, too, so that he also was recommended for
reunification services. The court then “revise[d] its previous finding that Mr. P[.]
voluntarily absented himself,” adopted the caseworker’s modified recommendations that
both parents receive reunification services, and set an informal “three-month oral
update.”
That update occurred in December 2012. Both Sonia E. and Jose P. were in court,
and were congratulated by the court for their progress.
The six-month review was held in March 2013. Jose P. had “relapsed once during
the review period,” and “recently got laid off . . . but . . . he has been offered another job
and will begin soon. He is participating in his case plan and engaging in services.” Both
he and Sonia E. were living with their respective families, he in Petaluma and she in
Santa Rosa. The caseworker analyzed the status of the situation as follows:
“Before the Court are the matters of [K.E.] and [A.P.], two little girls residing with
their maternal aunt. . . . At this time it is not clear if . . . Mr. P[.] and Ms. E[.] are in a
relationship with one another as they seem to go back and forth. This is concerning to the
undersigned because these girls need consistency and stability. Once both parents regain
a deeper focus on the current services, the undersigned may refer them to couples
counseling, but the undersigned would like to see them performing at a higher level and
not missing visits before adding additional services only to find that it may be too much.
“K[.] and A[.] are precious young girls that deserve the sobriety of their parents
and although Ms. E[.] and Mr. P[.] are participating in services, the undersigned is very
concerned about Mr. P[.]’s relapse . . . and Ms. E[.]’s recent lack of participation in her
4
[drug treatment] Program. The Department is pleased that Mr. P[.] has chosen to take
advantage of services offered to him as in the best interests of the children. Both parents
need to stay strong, focused and dedicated to their recovery and keep in mind how hard
they fought not to be bypassed on services. Despite the undersigned’s reservations, there
does appear to be substantial probability that the minors can reunify with their parents,
however the time is very limited and although both parents have a fighting chance at
reunification . . . they need to recommit themselves to services.” The caseworker
recommended Sonia E. and Jose P. receive six additional months of reunification
services.
The formal six-month review was initially set for March 7, 2013, but it was
continued a number of times for various reasons (including multiple settlement
conferences), and was not actually held until August 5, 2013. Part of the delay was
attributable to the Department in May changing its recommendation that Jose P. continue
to receive reunification services due to his “continued lack of participation in services
throughout the life of this case and particularly during this interim period.”3 Then in
June, the Department also changed its recommendation as to Sonia P., so that now the
Department was recommending that neither parent receive additional reunification
services, and, moreover, “that this matter be set for a 366.36 hearing to determine a
permanent plan for both children.”
The August 5, 2013 hearing commenced with counsel for the Department
informing the court: “Your Honor, although this is a contested hearing as to the 6-month
review, in fact, this is a case in which the 12-month review has merged with the 6-month
review, so we would ask the Court to deem this a 12-month hearing as well.
“And we do have a resolution, after much discussion and consideration by
everyone, and it’s been a complicated but, I think, fruitful process for us all.
3
An apparent reference to the time after March 7, 2013, when the six-month review was
initially scheduled.
5
“. . . [T]he agreement has been—and, of course, everyone can confirm this
independently, but I’ll just set the stage here—that the Department will be continuing
services to mother [Sonia E.], with regard to both [K.E. and A.P.], and setting this for an
18-month review on October the 17th, 2013. And services as to Mr. P[.] will be
terminated with respect to [A.P.], which is the case in which he had services.”
As explained to the court by counsel for the Department, Sonia E. was, in effect,
put in a zero-tolerance regime: “With regard to housing, that in order to have that piece of
the case plan deemed complied with, she would have to have more than a shelter . . .
or . . . transitional housing.” “[T]here were concerns that Mother has not been proactive
in meeting with the Department’s placement person” and “other [placement services],
and she will have to be proactive to seek those out.
“Mother will also be required to go to therapy once a week, . . . and there have
been some concerns about missed visits. There will be . . . no discussion about babies
being sick, anything, she has to find a way to get there.” Sonia E. was also required to
“start parent education at CPI [Child Parent Institute],” and maintain visitation with all
three of her daughters: “there won’t be any leaving Carmen[4] behind and just having the
two girls [i.e., K.E. and A.P.] . . . . [I]t is of paramount importance to determine mom’s
ability to have these children return, that she demonstrate her ability to . . . care for all
three at once. These are young kids, and it’s a handful, but that’s what she signed up
for.” “Mother will have to strictly comply with her 301 case plan involving Carmen.[5]
. . . [T]hat is of critical importance in assessing her progress.”
“Mother will attend DDC [Dependency Drug Court] strictly, no excuses. If the
baby [Carmen] is sick, then Mom comes, and she finds a place and someone to care for
the baby. But although DDC apparently excuses parents when babies are sick, in this
case, that’s not going to be the rule.”
4
This was the child born to Sonia E. during the dependency proceedings.
5
Section 301 authorizes that a caseworker “may, in lieu of filing a [dependency]
petition . . . , and with the consent of the child’s parent . . . , undertake a program of
supervision of the child.”
6
“Also, mother will be randomly tested by the Department for drugs.” “Mother
must demonstrate she independently can care for [K.E.]’s medical needs. . . . [including]
a requirement that she attend [K.E.]’s medical appointments. She will have to find a way
to get herself to those appointments. . . . [I]f mother cannot care for her, then there’s no
possibility of return. . . .
“I’m sure the Court can appreciate the concerns, . . . but there is just a little bit of
time left, because the 18 months [the statutory maximum for reunification services] is in
November. So this is ‘pedal to the metal,’ as we say and . . . this will be strict adherence.
In October, there won’t be any room for excuses.”
The court agreed that the hearing would be treated as a 12-month review, and then
heard concurrence from all parties. Yet counsel for K.E. and A.P. remained worried:
“[K.E. and A.P.] are very vulnerable little girls. [A.P.] just turned two years
old. . . . She’s in a critical period in her life. And as we know [K.E.] is five years old and
was just diagnosed with a very rare, very serious condition.[6] And I do have to . . . thank
the social worker for that, for her advocacy. I just spoke with the doctor this morning,
and he indicated that if it hadn’t been for the social worker’s advocacy, they might not
have found this. . . . [¶] But I’m very concerned. You know, it seems like the only thing
that’s been certain in this case has been uncertainty. And this mom has been given
chance after chance after chance. . . . And each time, it seems like she does just enough
to convince people that they should continue services to her. But there can’t be any
[more] wiggle room.
“The only reason that I’m submitting today is that, unfortunately, the girls’ aunt,
who they are living with, has indicated that she can no longer be a concurrent home, and
6
The condition, actually a number of ailments, is described in one of the Department’s
reports as follows: “[K.E.] suffers from congenital pectus excavatum, as her chest cavity
is severely caved in. [She] has a restrictive and interstitial lung disease, pulmonary
alveolar hemorrhage, asthma and is anemic. Her most recent health issue that was
discovered after several tests conducted at UCSF’s Benioff Children’s Hospital was a
diagnosis of idiopathic pulmonary hemosiderosis, a rare lung condition in which . . .
lungs can bleed, requiring immediate hospitalization and a blood transfusion.”
7
so the girls are going to take some time to transition. . . . [¶] So this situation is very
serious. We’ll see how the next two months are in terms of compliance, in terms of
taking this seriously, in terms of not hearing one single excuse, about one single missed
visit or therapy appointment or DDC hearing or anything. There’s just no room at all.
“These girls deserve better. They are actually going to require that mom do more
than most parents, given their vulnerabilities, given their level of need. They’re going to
require a lot more of mom than otherwise. So I guess only time will tell.”
Counsel for the Department closed the attorneys’ remarks with a caution: “I think
overlaying all of this is the need for mom to be absolutely transparent. There have been a
number of areas where it’s the Department’s sense and belief that mother has not been
straightforward. . . . [T]here is no room for anything but the absolute truth, and I would
just encourage mom to realize that. Because, you know, that was one of the reasons it
was a recommendation for termination. We cannot work with someone who is not being
absolutely straightforward.”
Before the court adopted the Department’s proposed findings and orders, it
addressed Sonia E.: “Mom, Sonia, you need to know that your attorney has, in some
ways, performed a miracle here. . . . [¶] . . . I appreciate all of the hard work that’s been
done. It’s taken over an hour, and that’s . . . unusual. But I think it reflects the
commitment the Department has shown to create reunification opportunities. The
opportunity is there. Now it’s up to you to deliver. They [counsel] have been very clear
about what’s expected.”
On October 9, 2013, the Department submitted its Status Review Report for the
18-month review. Because Sonia E. had already received the maximum of reunification
services, the Department was legally required to ask that no more be ordered. The
caseworker reported both K.E. and A.P. “continue to reside with their maternal aunt in
Santa Rosa,” while Sonia E. and daughter Carmen reside at the Catholic Charities Family
Support Center. The caseworker’s recommendation, again, was that “this matter be set
for a 366.26 hearing to determine a permanent plan for both children.” The reasons were
as follows:
8
“Ms. E[.] reports to the undersigned that she still has not followed up on the
daycare referrals as she agreed to do at the last court review hearing on August 5, 2013.
Carmen’s 301 Voluntary Family Maintenance social worker . . . reported to the
undersigned that Ms. E[.] informed her that she had followed up with the referrals but
said there were no openings available. The undersigned called the Children and Family
Circle childcare program on September 30, 2013 and was told that Ms. E[.] had not
contacted their program to date in regards to securing a stable childcare for Carmen and
that they do indeed have openings. In addition to the lack of follow through in regards to
daycare for Carmen, [that] there continues to be inconsistency in Ms. E[.]’s
communication with the various parties involved in this documented agreement at the last
hearing is further concerning.”
“Ms. E[.] missed DAAC/DDC services the week of September 30—October 4,
2013 due to Carmen’s illness, further breaking her agreement from the last hearing that
her DAAC/DDC attendance would be perfect and she agreed to have no excuses for
absences.”
“On August 19, 2013, the undersigned received a call from the caregiver of [K.E.
and A.P.] who stated that Ms. E[.] reported that her visits were no longer supervised and
to bring the girls to the shelter to visit over the weekend. The caregiver had not heard
from the social worker of this change and would not allow this change to be implemented
until hearing from the social worker directly. The undersigned returned the call of the
caregiver and informed her that visits were to continue to be supervised and expressed the
concern that Ms. E[.] was attempting to manipulate the caregiver.”
“In regards to Ms. E[.]’s progress in individual therapy, Ms. Seibel has expressed
concerns on multiple occasions to the undersigned that Ms. E[.] continues to bring her
daughter Carmen to their sessions despite Ms. Seibel communicating that it is vital that
Ms. E[.] come to sessions without Carmen. The undersigned communicated her concern
that Ms. E[.] is using Carmen as a buffer to prevent her from examining deeper issues in
therapy and Ms. Seibel expressed her agreement. Ms. Seibel reported that it is hard to
work effectively during their sessions because she is constantly chasing Carmen around
9
the room. The therapist also reported that Ms. E[.] has arrived late to some sessions due
to depending on others for rides. . . . She said Ms. E[.] has still not gotten the message
that she cannot bring Carmen to sessions. Ms. E[.] simply cannot engage in therapy with
. . . Carmen present.”
“. . . Ms. [E.]’s 301 Case Plan . . . requires her to get a Psychological Evaluation
with Dr. Rodolfo Rodriguez which to date Ms. E[.] has still not followed through with. It
is as if Ms. E[.] avoids being put to the test by her own design and is not cooperating with
her 301 Case Plan.”
“The undersigned directed Ms. Pena [of the California Parenting Institute] to
observe Ms. E[.] and her ability to independently manage all three girls and recognize
[K.E.]’s health issues. Ms. E[.] has voiced more concern and been more attentive to
[K.E.]’s signs of health decline this review period, but rather than focusing on how to
create sustainable means of transportation to attend [K.E.]’s appointments, many of
which are at UCSF Children’s Hospital, Ms. E[.] blames her family and accuses them of
not properly caring for [K.E.]. . . . On September 19, 2013, after four visits with Ms.
E[.], Ms. Pena reported that she is not seeing Ms. E[.] implement the [parenting] skills
being taught and that she observed her being rather heavy-handed with Carmen and
observed her showing Carmen some aggressive behaviors.”
The Department had “identified a potential . . . home for both girls in which one of
the care providers has [a] medical background.”
The caseworker concluded:
“Ms. E[.] has continued to struggle balancing the high needs of her three active
daughters combined with participating in her own services. Ms. E[.] has continued to be
inconsistent in her communication and appears unable to be honest with the worker as
she agreed at the last court hearing. Ms. E[.] has continued to struggle with her words
and behaviors matching up and the undersigned predicts that Ms. E[.] will put the blame
on the undersigned rather than take accountability for the consequences of her long-term
substance abuse and lifestyle, both of which have affected her and directly her children.
The undersigned has had many difficult conversations with Ms. E[.] in regards to the
10
myriad of responsibilities required to care for her daughters, while balancing daily living
but Ms. E[.] has still not made the major changes needed to have her children placed with
her and has continued to make excuses and blame the undersigned and her own family.
Rather than Ms. E[.] taking advantage of the opportunity to trace back the issues that
brought her to the attention of the Department and examining those issues deeply in her
individual therapy and potentially take personal accountability for her past choices and
trauma, within a safe and therapeutic setting, she has continued to blame outside forces.
Given Ms. E[.]’s involvement with the Department since 2011, continued struggle
managing all three children and serious concerns about her capacity to meet the health
and safety needs of her children, the Department does not believe that there is substantial
probability that [K.E. and A.P.] will be safely returned to Ms. E[.]’s care within the next
review period. Therefore the Department respectfully recommends that Family
Reunification Services be terminated as to the mother, Sonia E[.]”
The 18-month review set for October 17, 2013 was continued a number of times
for, among other reasons, two more attempts at settlement, and commission of a bonding
study at Sonia E.’s request.7
On February 10, 2014, reunification services to Sonia E[.] were terminated, and a
permanent placement hearing set.
That final hearing was held on September 9, 2014.
Meanwhile, the previous month, the juvenile received a written request from Sonia
E., pursuant to section 388, to change the order of February 10, 2014 that terminated her
reunification services. The motion was largely based on the bonding study completed by
7
“In a hearing to terminate parental rights in a dependency proceedings, the primary
issue often is whether the parents can establish that the child would benefit from a
continuing relationship with them and that termination of parental rights would therefore
be detrimental to the child. (§ 366.26, subd. (c)(1)(B)(i).) In attempting to establish or
eliminate this exception to the preferences for adoption, the parties or the court may
require a bonding study to illuminate the intricacies of the parent-child bond so that the
question of detriment to the child may be fully explored.” (In re S.R. (2009) 173
Cal. App. 4th 864, 869.)
11
Denise Wagner, Ph.D., a copy of which was appended to the request. It was obviously
not what Sonia E. expected.
Posing the question “What is the nature and quality of the relationship between
[K.E.] and her mother, Sonia E[.]?”, Dr. Wagner answered: “K[.]’s relationship with her
mother . . . has been unstable from very early in her life, when Ms. E[.] was absent from
home for days, to weeks or longer. These absences were so profound that at one reunion
[K.E.] did not recognize her mother. Much of the time she was present she was not in a
state to be attuned to K[.]’s emotional needs. K[.]’s behavior when with her mother at
visits demonstrates an insecure attachment to Ms. E[.] She is both angry with her mother
while at the same time emotionally needy of her attention. K[.] lacks a coherent strategy
for getting her attachment needs met from her mother. Ongoing regular contact between
Ms. E[.] and K[.] feeds K[.]’s sense of insecurity and fear of abandonment and does not
allow her to recover from her early trauma. [¶] K[.]’s needs for emotional stability, and
predictability of a secure attachment are profound, especially in light of her serious
medical condition. Not feeling well, having to endure unpleasant, frightening treatments,
including hospitalizations, is a tremendous burden for a young child. The complexity of
her medical and emotional needs requires a heightened degree of attunement on the part
of the parent. It is concerning to note that Ms. E[.], according to records and reports from
[the caseworker], that Ms. E[.] rarely inquires about K[.]’s health.”
To the same query about A.P., Dr. Wagner answered: “A[.P.] has not resided with
her mother since the age of 7 months. Consequently, she has lived separately from Ms.
E[.] most of her young life. She appears to have weathered multiple placements quite
well given her early instability. In visits with Ms. E[.], her primary focus of attention is
with her younger sister, Carmen. While her interactions with Ms. E[.] are, for the most
part pleasant, when visits are over she eagerly awaits the arrival of the foster mother, and
is delighted to see her when she arrives.”
To questions about the relationships of K.E. and A.P. with “the current guardians,”
Dr. Wagner stated: “K[.] is building an attachment to her current guardians. They have
an understanding of the disease process as well as the psychological and emotional affect
12
being chronically and seriously ill has on K[.] [¶] She imagines a future with them,
seeks comfort from them and spontaneously gives affection to them and receives
affection from them openly. Her tantrums, pouting, and nightmares have diminished as
her sense of security is deepening in her care. [¶] They are very involved in her medical
treatment.” “A[. P.] is developing a deepening attachment to the foster parents. She is
comfortable with them, regards them as parental figures, and spontaneously offers and
receives affection with them. She shadows both foster parents in the home and desires to
be with them. Overall, A[.P.] appears to be surviving the instability of her infancy and
earliest childhood experiences. Her development and behavior are on target with her
chronological age. Her current placement provides her the security required to continue
on this path.”
Next was “What is the nature and quality of the relationship [K.E. and A.P.] have
with Carmen P[.]?” Dr. Wagner answered her own question as follows: “Both [K.E. and
A.P.] have an affectionate and loving relationship with Carmen. This is especially true
for A[.P.] Carmen is the primary focus of A[.]’s attention during visits. She refers to her
as ‘My Carmen.’ They play well together with little sibling rivalry. When asking about
upcoming visits, she asks about when she will see Carmen. K[.] is affectionate with
Carmen, but her main focus during visits is on getting her own needs met. She is prone
to jealousy when attention from Ms. E[.] is focused on either of her sisters.”
Finally, as to “What is the Preferred Plan for [K.E. and A.P.]?”, Dr Wagner
concluded: “Adoption is the preferred plan for both [K.E. and A.P.] Continued contact
should be thoughtfully and carefully planned, based on the needs of each child. It would
be beneficial, especially for A[.], to have some degree of continued contact with Carmen,
which would necessitate some contact with Ms. E[.] Such visits should be supervised
and occur less frequently over time, to support the development of the children’s primary
attachment to the current guardians. Whether or not visits are continued, the benefits of a
permanent plan of adoption outweigh the detriments of severing the relationship each of
them has with Ms. E[.]”
13
Asked on the Judicial Council motion form “Why would the requested order or
action be better for the child or youth?”, Sonia E. answered:
“Despite Dr. Wagner’s recommendation for termination of parental rights, I feel
we do have a parent-child relationship. It was I who sought answers when [K.E.] first
showed signs of illness (see letter from Dr. Prystowsky). I completed my case plan; I am
in recovery for 26 months. I have a job and I have separated myself from a relationship
that was not serving either me or my children well (Jose P[.]).
“My former service providers (letters attached) spoke highly of me. I graduated
from Dependency Drug Court. I NEVER relapsed from the time I entered residential
treatment. I found myself being criticized for my parenting style—too authoritative; no
affect; no sympathy.
“I think the description of my contacts with my two older girls in the Bonding
Study shows how far I have come. I understand that evaluator feels the girls should be
adopted out; I do want to point out that K[.E.] clung to me, wrapped herself around my
leg, not wanting our first observed visit to end. Similarly, at the end of our second
observed visit, K[.] hung on to me. I had to tell her, firmly, that we had to go. K[.] cried.
(See Bonding Study, pages 11-13.)
“I also want to comment on the part of the Bonding Study where it states ‘Ms.
E[.], according to records and reports . . . rarely inquires about [K.E.]’s health.’ Bonding
Study page 15. That is simply not true; in fact, I was the one who kept bugging medical
professionals to find out what was wrong with my child. Her disorder is very rare; in
fact, K[.]’s primary care provider, Dr. Prystowsky, had never heard of it before. He calls
it a common complaint with an unusual diagnosis. Anemia (iron deficiency) is common
in families with low income. K[.] has severe levels (according to her doctor).
“For many months I joined in on doctor appointments while I was in reunification
with the girls and they were placed with their maternal great-aunt (who did not want to
keep them). The only reason I stopped attending was I was no longer informed of the
days and times. I remember I was at UCSF on September 9, 2013 because K[.] needed a
transfusion-like treatment. At that time I heard about several other appointments that I
14
didn’t attend because I wasn’t told. I am no longer allowed to attend her medical
appointments.
“During reunification my mother experienced breast cancer; as part of her
treatment, she had her breast removed. My sister lost her only son, Tony; he was a dwarf
who had the highest level of ostiogenesis imperfecta (brittle bone disease). He wore a
size 4T clothing and he was 13 years old. He died at his home; although CPS tried to say
neither me nor my sister (his mother) took good care of him, that is not true. He died of
natural causes, there was no foul [play] or medical neglect. It is unfortunate the girls
were there when he passed away. I understand how it affected them, especially [K.E.].
She practically lived with my parents, my sister, and Tony for the first years of her life
(when I was using drugs).
“I fought hard to get reunification services and I am not giving up. I care for my
daughter Carmen very well; I had voluntary services for her after Tony died. My social
worker was Melissa McKinney. When Tony died I did say I thought about relapsing but,
I never did. I thought talking about it was better than stuffing down my feelings. I
completed my case plan for Melissa. Carmen and I need [K.E. and A. P] to complete our
family and I feel they both need us to complete theirs. Dr. Wagner writes about how both
girls loved Carmen; [A.P.] and Carmen reached out for each other. She states that both
[K.E. and A.P.] have an affectionate and loving relationship with Carmen.
“I want to raise my three children together; I think it is in [K.E.’s and A.P.]’s best
interest.”
Sonia E.’s Request was summarily denied on August 25. The stated grounds were
that “The request does not state new evidence or a change of circumstances,” and “The
proposed change of order . . . does not promote the best interest of the child.”
By the time of the permanent placement hearing the following month, the juvenile
court had received the Department’s “366.26 WIC Report.” It informed the court that
K.E. and A.P. “are currently placed in a confidential foster home; the foster parents have
demonstrated interest in adopting the minors. The minors have been in the current
placement since December . . . 2013.” “After a thorough assessment . . . , the . . .
15
Department has determined the children are likely to be adopted and recommends
parental rights be terminated and a plan of adoption be ordered.”
The caseworker elaborated: “the current caregivers reported that [K.E. and A.P.]
do not act out or display any abnormal behaviors after visiting with their mother. The
undersigned asked the prospective adoptive mother if the children asked for their mother
and she replied that they rarely ask for their mother but would often ask for their baby
sister.” “During this review period, neither [K.E. and A.P.] visited with their fathers. [¶]
The assessment by the . . . Department includes consideration of WIC 366.26
(c)(1)(B)(i).[8] Although interaction between the minors and the mother may have some
incidental benefit, such benefit does not outweigh the benefit they will gain through the
permanence of adoption. The . . . Department finds that termination of parental rights
would not be detrimental to the children.”
K.E. “had her last physical exam in January 2014. [K.E.]’s medical issues
continue to be stable and she has continued to respond well to her current treatment. . . .
After diligent work from the Department, caregivers and doctors, it was arranged for the
minor to receive her treatment at Memorial Hospital in Santa Rosa instead of traveling to
San Francisco three consecutive days per month. [¶] . . . It is very important to note that
[K.E.] receives this treatment (infusion of liquid prednisone) once a month and at times it
8
The cited provision provides in pertinent part: “(c)(1) If the court determines, . . . by a
clear and convincing standard, that it is likely the child will be adopted, the court shall
terminate parental rights and order the child placed for adoption . . . unless either of the
following applies: [¶] . . . [¶] (B) The court finds a compelling reason for determining
that termination would be detrimental to the child due to one or more of the following
circumstances: [¶] (i) The parents have maintained regular visitation and contact with
the child and the child would benefit from continuing the relationship.” Another
exception is that “[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).)
16
takes about 1.5 to two hours just to administer the treatment. The current caregivers
reported that sometimes the days of treatment have lasted up to 7 hours . . . .”
“[K.E.] is currently receiving individual therapy through CPI. [K.E.] started
individual therapy in . . . 2014 and is in the process of building rapport with her therapist.
[K.E.] was referred to individual therapy given that she did not have the opportunity to
process traumatic experience of witnessing her cousin dying. The undersigned believed
it was imperative that [K.E.] have a chance to participate in individual therapy as a way
for her to process her feelings of grief and loss. The current caregivers reported that at
times [K.E.] tends to hit [A.P.] and appear to get easily irritable. They describe these
behaviors to worsen in the days following her monthly medical treatment.”
“[A.P.] had her last well child exam on or about February 19, 2014 . . . . The
results of the evaluation revealed that [A.P.] is a healthy two-year-old.” “[A.P.] has not
been referred to therapy given her age and because [she] has not demonstrated any need
for therapy. [A.P.] appears to have adapted well to her caregivers. She appears
comfortable with the caregivers and often refers to them as ‘Mami and Papi.’ ”
“The children currently visit with their maternal half-sibling [i.e., Carmen] every
other week during the visits with their mother. The children appear to enjoy visiting their
baby sister and the caregivers reported they tend to ask about Carmen.”
The caseworker advised the court that the current caregivers, already a “certified
foster home,” were accepted by the Department as prospective adoptive parents, and an
adoption home study was being completed. “The prospective adoptive parents are stable
emotionally and economically. They have extensive years of experience with children in
the Child Welfare System with diverse emotional, behavioral, physical and medical
needs,” and “appear committed to the permanency of these children.”
“[K.E. and A.P.] appear to be developing a strong and healthy relationship with
their prospective adoptive parents and would benefit from the establishment of a
permanent parent/child relationship through adoption. They appear to be secure and
comfortable in their current placement. The minors have been observed interacting with
17
the prospective adoptive parents in a loving manner. . . . [K.E. and A.P.] appear to have
substantial emotional ties to the prospective adoptive parents.”
The caseworker concluded: “It is important to note that [K.E.] has significant
medical needs that must be met and the birth parents were not able to meet which led to
her removal. It is crucial to have a clear understanding that [K.E.] continues to have high
medical needs that require constant monitoring and regular medical appointments. . . .
[¶] It is also important to mention that, while the mother has been able to care for her
youngest daughter, it does not reflect [on] her ability to parent two additional children. It
appears that the challenge and responsibilities that pose parenting a baby and two other
children, including one with severe medical needs, are far beyond the mother’s
ability . . . . [¶] It is in the best interests of the minors that the legal relationship between
the children and the parents be terminated pursuant to WIC 366.26 and that the children
be placed in the care and custody of the . . . Department for adoptive placement.”
Both Sonia E. and Jose P. were present at the permanent plan hearing. The only
testimony came from Sonia E., and covered the same ground as the attachment to her
request of the previous month. She testified that K.E. and A.P. are attached to her, call
her either “Ma” or “Mommy,” and would be adversely impacted if her parental rights
were terminated. Asked why those rights should not be terminated, she replied:
“[B]ecause I deserve a second chance to raise my kids. I missed out on so many years
because of my addiction. And I’m present now. I’m stable. And I just want that chance
to raise my kids, send them off to school, put them to bed, make them their meals, help
do their homework.” She asked the court to choose a guardianship instead of adoption
as the permanent plan.
After hearing argument, the court ruled that “Dr. Wagner’s analysis and
conclusions seem, to this Court, to be well-founded, well thought out. And it carries, . . .
especially under these circumstances, a great deal of weight with this Court. As such, the
Court is going to adopt the [Department’s] Proposed Findings and Orders.”
18
REVIEW
The Juvenile Court Did Not Abuse Its Discretion
by Summarily Denying the Section 388 Petition
“Any parent . . . having an interest in a child who is a dependent child . . . may,
upon grounds of change of circumstance or new evidence, petition the court . . . for a
hearing to change, modify, or set aside any order of court previously made . . . .” (§ 388,
subd. (a)(1).) “If it appears that the best interests of the child . . . may be promoted by the
proposed change of order, . . . the court shall order that a hearing be held . . . .” (Id.,
subd. (d).) Such a petition may be summarily denied if the petition fails to make a prima
facie showing of either a change of circumstances or how the proposed change would
promote the best interests of the dependent. (In re Justice P. (2004) 123 Cal. App. 4th
181, 188–189.) A summary denial is reviewed according to the abuse of discretion
standard. (In re A.S. (2009) 180 Cal. App. 4th 351, 358.)
Sonia E., joined by Jose P., contends the juvenile court erred in summarily
denying her “request” to set aside the order terminating reunification services. We do not
agree.
In evaluating whether a parent has met the burden to show changed circumstances,
the juvenile court should consider: (1) the seriousness of the problem which led to the
dependency, and the reason for any continuation of that problem; (2) the strength of
relative bonds between the dependent children to both parent and caretakers; and (3) the
degree to which the problem may be easily removed or ameliorated, and the degree to
which it actually has been. (In re Kimberly F. (1997) 56 Cal. App. 4th 519, 532.) These
factors become less significant once reunification services have been terminated, as in the
instant case. This is because, “[a]fter the termination of reunification services, . . . ‘the
focus shifts to the needs of the child for permanency and stability’ [citation] . . . .” (In re
Stephanie M. (1994) 7 Cal. 4th 295, 317.)
The basis for Sonia E.’s petition/request was her continuing to “have a parent-
child relationship” with K.E. and A.P. This subject would have to be considered at the
scheduled permanent planning hearing (see § 366.26, subd. (c)(1)(B)(i), quoted at fn. 8,
19
ante), particularly as it had been put in play by Dr. Wagner’s bonding study. Thus, the
petition/request was redundant and could be summarily denied on that basis alone. (See
In re B.C. (2011) 192 Cal. App. 4th 129, 142 [“The petition can only be described as
superfluous; the petition sought a hearing on the very issue [that] would be considered at
a hearing that had already been scheduled.”].)
In addition, Sonia E. had already had 18 months of reunification services, the
statutory maximum. (§ 361.5, subd. (a)(3).) Services had been terminated in February,
almost six months before Sonia E. asked for their resumption. Sonia E. cites no authority
allowing reunification services to be restarted beyond the statutory maximum in the same
dependency. In short, Sonia E.’s request was for something which, if not legally
impossible, was certainly beyond the court’s discretion to grant. (See Denny H. v.
Superior Court (2005) 131 Cal. App. 4th 1501, 1509–1511 [“ ‘order extending
reunification services [beyond statutory maximum] exceeded the court’s jurisdiction.’ ”].)
Lastly, the request did not make a prima facie showing of changed circumstances.
Sonia E.’s supporting attachment was quoted in full to demonstrate that it was a vehicle
for her to dispute points in the bonding study and vehemently insist on her good
intentions. There was nothing in it that was not already known to the court.
For each and all of these reasons, we conclude the juvenile court did not abuse its
discretion with a summary denial. (In re A. S., supra, 180 Cal. App. 4th 351, 358.)
The Finding That the Dependents Were Adoptable
Is Supported by Substantial Evidence
“The court has four choices at the permanency planning hearing. In order of
preference the choices are: (1) terminate parental rights and order that the child be placed
for adoption (the choice the court made here); (2) identify adoption as the permanent
placement goal and require efforts to locate an appropriate adoptive family; (3) appoint a
legal guardian; or (4) order long-term foster care. (§ 366.26, subd. (b).) Whenever the
court finds ‘that it is likely the child will be adopted, the court shall terminate parental
rights and order the child placed for adoption.’ (§ 366.26, subd. (c)(1).) The
20
circumstance that the court has terminated reunification services provides ‘a sufficient
basis for termination of parental rights unless the court finds a compelling reason for
determining that termination would be detrimental to the child due to one or more’ of
specified circumstances. (Ibid.) The Legislature has thus determined that, where
possible, adoption is the first choice. ‘Adoption is the Legislature’s first choice because
it gives the child the best chance at [a full] emotional commitment from a responsible
caretaker.’ [Citation.]” (In re Celine R. (2003) 31 Cal. 4th 45, 53.)
“In order for the court to select and implement adoption as the permanent plan, it
must find, by clear and convincing evidence, the minor will likely be adopted if parental
rights are terminated.” (In re Tabatha G. (1996) 45 Cal. App. 4th 1159, 1164; see
§ 366.26, subd. (c)(1), quoted at fn. 8, ante.) “Although a finding of adoptability must be
supported by clear and convincing evidence, it is nevertheless a low threshold: The court
must merely determine that it is ‘likely’ that the child will be adopted within a reasonable
time.” (In re K.B. (2009) 173 Cal. App. 4th 1275, 1292.)
Adoptability is not necessarily a one-dimensional concept. Generally, “[t]he issue
of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the
minor’s age, physical condition, and emotional state make it difficult to find a person
willing to adopt the minor.” (In re Sarah M. (1994) 22 Cal. App. 4th 1642, 1649.) It is
not necessary that the minor already be in a potential adoptive home, or that there even be
a prospective adoptive parent. (Ibid.) This is what has come to be called “general”
adoptability.
“ ‘If the child is considered generally adoptable, we do not examine the suitability
of the prospective adoptive home. [Citation.] However, where the child is deemed
adoptable based solely on the fact that a particular family is willing to adopt him or her,
the trial court must determine whether there is a legal impediment to adoption.’
[Citation.] [¶] . . . [¶] In other words, . . . ‘in some cases a minor who ordinarily might
be considered unadoptable [because of] age, poor physical health, physical disability, or
emotional instability is nonetheless likely to be adopted because a prospective adoptive
family has been identified as willing to adopt the child.’ ” (In re I.W. (2009) 180
21
Cal. App. 4th 1517, 1526, italics added.) This is what has come to be called “specific”
adoptability.
“All that is required is clear and convincing evidence of the likelihood that
adoption will be realized within a reasonable time.” (In re Zeth S. (2003) 31 Cal. 4th 396,
406.) Additionally, the prospect that the minors may have some continuing behavioral or
developmental problems does not foreclose a finding of adoptability. (See In re Jennilee
T. (1992) 3 Cal. App. 4th 212, 224–225.) Although the juvenile court must find by clear
and convincing evidence that the child is adoptable, we review a finding of adoptability
for substantial evidence. (In re D.M. (2012) 205 Cal. App. 4th 283, 294, fn. 3; In re E.B.
(2010) 184 Cal. App. 4th 568, 578.)
Sonia E., again joined by Jose P., argues the finding of K.E.’s adoptability made
by the juvenile court is not supported by substantial evidence. This claim is to be
evaluated according to familiar principles: “On review of the sufficiency of the evidence,
we presume in favor of the order, considering the evidence in the light most favorable to
the prevailing party, giving the prevailing party the benefit of every reasonable inference
and resolving all conflicts in support of the order.” (In re Autumn H. (1994) 27
Cal. App. 4th 567, 576.) “[A]n appellate court does not reassess the credibility of
witnesses or reweigh the evidence. [Citation.] . . . Thus, we must uphold the juvenile
court’s factual findings if there is any substantial evidence, whether controverted or not,
that supports the court’s conclusion.” (In re S.C. (2006) 138 Cal. App. 4th 396, 415.) The
presence of prospective adoptive parents is substantial evidence of adoptability. (In re
Sarah M., supra, 22 Cal. App. 4th 1642, 1649–1650.)
By focusing only on K.E., Sonia E. is framing the issue as whether K.E.’s
“specific adoptability” is supported by the record. It clearly is. K.E.’s demanding
medical problems and needs were not a secret. The prospective adoptive parents had
firsthand experience with them and were willing to proceed to adoption. That alone is
substantial evidence. (In re Sarah M., supra, 22 Cal. App. 4th 1642, 1649–1650 [“the fact
that a prospective adoptive parent has expressed interest in adopting the minor is
evidence that the minor’s age, physical condition, mental state, and other matters relating
22
to the child are not likely to dissuade individuals from adopting the minor. In other
words, a prospective adoptive parent’s willingness to adopt generally indicates the minor
is likely to be adopted within a reasonable time either by the prospective adoptive parent
or by some other family”].) The caseworker and Dr. Wagner knew of the difficulties in
finding an adoptive family for K.E., yet both of them in their respective reports—both of
which were received in evidence at the final hearing—believed she was adoptable. This
is also substantial evidence. (See In re Gregory A. (2005) 126 Cal. App. 4th 1554, 1561–
1563, [caseworker’s report was substantial evidence child was likely to be adopted]; In re
Jennilee T., supra, 3 Cal. App. 4th 212, 224 [opinion of caseworker was substantial
evidence child was likely to be adopted].)
The Juvenile Court’s Determination That There Was
No Exceptional Circumstance Preventing Adoption Is Sound
“Section 366.26 provides an exception to the general legislative preference for
adoption when ‘[t]he court finds a compelling reason for determining that termination
would be detrimental to the child’ (§ 366.26, subd. (c)(1)(B)) because ‘[t]he parents have
maintained regular visitation and contact with the child and the child would benefit from
continuing the relationship.’ (§ 366.26, subd. (c)(1)(B)(i).) The ‘benefit’ prong of the
exception requires the parent to prove his or her relationship with the child ‘promotes the
well-being of the child to such a degree as to outweigh the well-being the child would
gain in a permanent home with new, adoptive parents.’ [Citations.] No matter how
loving and frequent the contact, and notwithstanding the existence of an ‘emotional bond’
with the child, ‘the parents must show that they occupy “a parental role” in the child’s
life.’ [Citations.] The relationship that gives rise to this exception to the statutory
preference for adoption ‘characteristically aris[es] from day-to-day interaction,
companionship and shared experiences. Day-to-day contact is not necessarily required,
although it is typical in a parent-child relationship.’ [Citation.] Moreover, ‘[b]ecause a
section 366.26 hearing occurs only after the court has repeatedly found the parent unable
to meet the child’s needs, it is only in an extraordinary case that preservation of the
23
parent’s rights will prevail over the Legislature’s preference for adoptive placement.’
[Citation.]” (In re K.P. (2012) 203 Cal. App. 4th 614, 621.) A juvenile court’s decision
on this issue is also reviewed for substantial evidence. (Id. at pp. 621–622.)
Another exception to adoption is 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).) “[E]ven if a sibling
relationship exists that is so strong that its severance would cause the child detriment, the
court then weighs the benefit to the child of continuing the sibling relationship against the
benefit to the child adoption would provide.” (In re L. Y. L. (2002) 101 Cal. App. 4th 942,
952–953.) Accordingly “the application of this exception will be rare, particularly when
the proceedings concern young children whose needs for a competent, caring and stable
parent are paramount.” (In re Valerie A. (2007) 152 Cal. App. 4th 987, 1014.) And it
must be kept in mind that “the sibling relationship exception permits the trial court to
consider possible detriment to the child being considered for adoption, but not a sibling
of that child. . . . ‘[T]he language [of section 366.26., subdivision (c)(1)(B)(v)] focuses
exclusively on the benefits and burdens to the adoptive child . . . .’ [Citation.] Nothing in
the statute suggests the Legislature intended to permit a court to not choose an adoption
that is in the adoptive child’s best interest because of the possible effect the adoption may
have on a sibling.” (In re Celine R., supra, 31 Cal. 4th 45, 54.) Thus, the inquiry is only
about the detriment to K.E. and A.P. if the relationship to Carmen was severed.
“[T]he burden [of proof] is on the party seeking to establish the existence of one of
the section 366.26, subdivision (c)(1) exceptions to produce that evidence.” (In re Megan
S. (2002) 104 Cal. App. 4th 247, 252.) A juvenile court’s determination that one or more
24
of the exceptions do not apply is also reviewed for substantial evidence.9 (In re L. Y. L.,
supra, 101 Cal. App. 4th 942, 947.)
Choosing to see the issue through the abuse of discretion lens, Sonia E. and Jose P.
assert that the juvenile court abused its discretion in concluding that neither exception
applies to avert termination. We do not think the juvenile court was required as a matter
of law to treat this case as sufficiently rare or exceptional to overcome the preference for
adoption.
9
Actually, the standard of review is somewhat unsettled. “For years California courts
have diverged in their view about the applicable standard of review for an appellate
challenge to a juvenile court ruling rejecting a claim that an adoption exception applies.
Most courts have applied the substantial evidence standard of review to this
determination [citations], although at least one court has concluded that it is properly
reviewed for an abuse of discretion (In re Jasmine D., supra, 78 Cal.App.4th at p. 1351).
Recently, the Sixth Appellate District has cogently expressed the view that the review of
an adoption exception incorporates both the substantial evidence and the abuse of
discretion standards of review. (In re Bailey J. (2010) 189 Cal. App. 4th 1308, 1314–1315
(Bailey J.).) The Bailey J. court observed that the juvenile court’s decision whether an
adoption exception applies involves two component determinations: a factual and a
discretionary one. The first determination—most commonly whether a beneficial
parental or sibling relationship exists, although section 366.26 does contain other
exceptions—is, because of its factual nature, properly reviewed for substantial evidence.
(189 Cal.App.4th at p. 1314.) The second determination in the exception analysis is
whether the existence of that relationship or other specified statutory circumstance
constitutes ‘a compelling reason for determining that termination would be detrimental to
the child.’ (§ 366.26, subd. (c)(1)(B); see Bailey J., at p. 1315.) This ‘ “quintessentially”
discretionary decision, which calls for the juvenile court to determine the importance of
the relationship in terms of the detrimental impact that its severance can be expected to
have on the child and to weigh that against the benefit to the child of adoption,’ is
appropriately reviewed under the deferential abuse of discretion standard.” (In re K.P.,
supra, 203 Cal. App. 4th 614, 621–622.)
But even the headsource for the abuse of discretion standard acknowledged that it
can ultimately be seen as a matter of substantial evidence. “The practical differences
between the two standards of review [substantial evidence and abuse of discretion] are
not significant. ‘[E]valuating the factual basis for an exercise of discretion is similar to
analyzing the sufficiency of the evidence for the ruling. . . . Broad deference must be
shown to the trial judge. The reviewing court should interfere only “ ‘if [it] find[s] that
under all the evidence, viewed most favorably in support of the trial court’s action, no
judge could reasonably have made the order that he did.’ ” ’ ” (In re Jasmine D. (2000)
78 Cal. App. 4th 1339, 1351.)
25
By the time of the final hearing in September 2014, K.E. and A.P. had been living
apart from Sonia E. and Jose P. for 29 months, ever since the minors had been detained in
May 2012. During the course of the dependency it became increasingly clear that Sonia
E. was unable to manage the care of all three of her daughters, and nothing in the record
compels optimism of improvement should the four be reunified. Meanwhile, K.E. and
A.P. were forming attachments and dependence upon their foster parents, getting the
emotional stability they need. Dr. Wagner implicitly, and the caseworker explicitly (see
text accompanying fn. 8, ante), each determined that the benefit the minors would gain
from continuing a relationship with their mother was outweighed by what they gain from
adoption. Their opinions constitute substantial evidence. And thus no abuse of
discretion. (See In re Jasmine D., supra, 78 Cal. App. 4th 1339, 1351.) Sonia E. and Jose
P. failed to carry their burden of demonstrating that they occupied parental roles for K.E.
and A.P. who would thus be “greatly harmed” by termination. (In re Brittany C. (1999)
76 Cal. App. 4th 847, 853; In re Derek W. (1999) 73 Cal. App. 4th 823, 826–827.)
What our colleagues in Division Three said in Jasmine D. is pertinent here:
“By the time of a section 366.26 hearing, the parent’s interest in reunification is no
longer an issue and the child’s interest in a stable and permanent placement is paramount.
[Citations.] ‘In light of the earlier judicial determinations that reunification cannot be
effectuated, it becomes inimical to the interests of the minor to heavily burden efforts to
place the child in a permanent alternative home.’ [Citation.] The child has a compelling
right ‘to [have] a placement that is stable, permanent, and that allows the caretaker to
make a full emotional commitment to the child.’ [Citation.] Adoption is the
Legislature’s first choice because it gives the child the best chance at such a commitment
from a responsible caretaker. [Citations.]
“The exception provided in section 366.26, subdivision (c)(1)[(B)(i)] must be
considered in view of the legislative preference for adoption when reunification efforts
have failed. [Citation.] So viewed, the exception does not permit a parent who has failed
to reunify with an adoptable child to derail an adoption merely by showing the child
would derive some benefit from continuing a relationship maintained during periods of
26
visitation with the parent. The . . . exception is not a mechanism for the parent to escape
the consequences of having failed to reunify. That opportunity is provided by section
388, which permits a parent to petition for reconsideration of the reunification issue based
on a finding of changed circumstances. [Citation.]” (In re Jasmine D., supra, 78
Cal. App. 4th 1339, 1348.)
We discern no basis for overturning the juvenile court’s determination on the first
of the exceptions.
With respect to the second exception, that termination would cause “substantial
interference with a . . . sibling relationship” (§ 366.26., subd. (c)(1)(B)(v)), the answer is
the same. Clearly there was a relationship between Carmen and her older sisters. Both
the caseworker and Dr. Wagner noted the affection K.E. and A.P. have for Carmen.10
But Carmen was born after K.E. and A.P. had been detained, so the three never lived
together. They do not share “significant common experiences.” (Ibid.) K.E. and A.P.
see Carmen only when Sonia E. visits. There is no independent interaction. And Dr.
Wagner and the caseworker each determined that the benefit the minors would gain from
continuing a relationship with Carmen and mother was outweighed by what they gain
from adoption. On this point also, their opinions constitute substantial evidence. And
thus no abuse of discretion. On this point also, we discern no basis for overturning the
juvenile court’s determination that this was not one of the rare instances where the sibling
bond was strong enough to overcome “the general rule that the court must choose
adoption where possible.” (In re Celine R., supra, 31 Cal. 4th 45, 53; see In re L. Y. L.,
supra, 101 Cal. App. 4th 942, 947; In re Valerie A., supra, 152 Cal. App. 4th 987, 1014.)
There Was No ICWA Violation
Concerning operation of the ICWA, this court recently stated:
10
We note that the juvenile court was aware of the suggestion from our Supreme Court
that “[w]hen appropriate, the court can encourage the adoptive parents to agree to visits
among the siblings although, as the court recognized in this case, it cannot require them
to do so.” (In re Celine R., supra, 31 Cal. 4th 45, 55.)
27
“ICWA was ‘the product of rising concern in the mid-1970’s over the
consequences to Indian children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers of Indian children from
their families and tribes through adoption or foster care placement, usually in non-Indian
homes.’ [Citations.] . . . [¶] . . . [¶] In the second section of ICWA, Congress declared
it a national policy ‘to protect the best interests of Indian children and to promote the
stability and security of Indian tribes and families by the establishment of minimum
Federal standards for the removal of Indian children from their families and the
placement of such children in foster or adoptive homes which will reflect the unique
values of Indian culture, and by providing for assistance to Indian tribes in the operation
of child and family service programs.’ (25 U.S.C. § 1902.)
“Consistent with this policy, ICWA establishes procedural and substantive
standards governing the removal of Indian children from their families. [Citations.] Our
Supreme Court recently described these standards as follows:
“ ‘When applicable, ICWA imposes three types of requirements: notice,
procedural rules, and enforcement. [Citation.] First, if the court knows or has reason to
know that an “ ‘Indian child’ ” is involved in a “ ‘child custody proceeding,’ ” as those
terms are defined in the Act [citation], the social services agency must send notice to the
child’s parent, Indian custodian, and tribe by registered mail, with return receipt
requested. [Citation.] If the identity or location of the tribe cannot be determined, notice
must be sent to the Bureau of Indian Affairs (BIA). [Citation.] No hearing on foster care
placement or termination of parental rights may be held until at least 10 days after the
tribe or BIA has received notice. [Citation.]
“ ‘Next, after notice has been given, the child’s tribe has “a right to intervene at
any point in the proceeding.” [Citation.] “At the heart of the ICWA are its provisions
concerning jurisdiction over Indian child custody proceedings. . . . [I]n the case of
children not domiciled on the reservation: on petition of either parent or the tribe, state-
court proceedings for foster care placement or termination of parental rights are to be
transferred to the tribal court, except in cases of ‘good cause,’ objection by either parent,
28
or declination of jurisdiction by the tribal court.” [Citation.] If the tribal court does not
assume jurisdiction, ICWA imposes various procedural and substantive requirements on
the state court proceedings. Indigent parents or Indian custodians have the right to court-
appointed counsel. [Citation.] Before the court can place an Indian child in foster care or
terminate parental rights, it must find “that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful.” [Citation.] A foster care
placement also requires a finding, by clear and convincing evidence, based on testimony
from “qualified expert witnesses,” that “continued custody of the child by the parent . . .
is likely to result in serious emotional or physical damage to the child.” [Citation.]
Before a termination of parental rights may occur, likelihood of harm must be proven
beyond a reasonable doubt. [Citation.] Once the appropriate showing is made, ICWA
establishes rules for the placement of an Indian child outside the home. “The most
important substantive requirement imposed on state courts is that of § 1915(a), which,
absent ‘good cause’ to the contrary, mandates that adoptive placements be made
preferentially with (1) members of the child’s extended family, (2) other members of the
same tribe, or (3) other Indian families.” [Citation.]
“ ‘Finally, an enforcement provision offers recourse if an Indian child has been
removed from parental custody in violation of ICWA. Upon a petition from the parent or
the child’s tribe to “any court of competent jurisdiction,” a foster care placement or
termination of parental rights will be invalidated if the action was conducted in violation
of ICWA.’ [Citation.]” (In re Autumn K. (2013) 221 Cal. App. 4th 674, 701–703.)
It has never been disputed that K.E. has Indian ancestry through her father and
thus qualifies as an Indian child. (See 25 U.S.C. § 1903(4) [“ ‘Indian child’ means any
unmarried person under age eighteen and is . . . the biological child of a member of an
Indian tribe”].) This was known from the start of the dependencies. The appropriate
tribe was notified, and it formally intervened in June 2012, the month after the
dependency proceedings commenced. And, from that point on, Percy Tejada, the tribe’s
29
“ICWA specialist” and “Indian Child Welfare Manager,” participated in the
dependencies.
The Department was advised in the Department’s reports that “Mr. Tejada has
been actively involved in this case . . . and has also collaborated with the Department in
regards to a permanent placement for K[.],” and that “Mr. Tejada presented K[.]’s case to
the Tribe and there were no homes willing or able to care for . . . K[.]”
At the dispositional hearing, the juvenile court made the following findings:
“There is clear and convincing evidence that active efforts were made to provide
remedial services and rehabilitative programs to prevent the breakup of the Indian family
and those efforts were unsuccessful. [¶] . . . [¶]
“ICWA Qualified Expert Testimony/Finding
“There is clear and convincing evidence that continued custody with the parents is
likely to cause serious physical or emotional damage to the children;
“As to K[.], the parties and Tribe have knowingly, intelligently and voluntarily
waived the ICWA requirement that the Department produce expert evidence that
continued custody with the parents is likely to cause serious emotional or physical harm
to the child[ren].”
At the final hearing, counsel for the Department told the court that “Mr. Tejada,”
who was not present but was “aware of today’s hearing,” “has consistently indicated the
Tribe supports the recommendation of adoption.” Among the findings made by the
juvenile court at the final hearing was this: “The child, K[.]’s, tribe was actively involved
in the development of the case plan and plan for permanent placement, including
consideration of whether tribal customary adoption is an appropriate permanent plan for
the child if reunification was unsuccessful.”
Notwithstanding this tribal involvement, Sonia E. and Jose P. discern a violation
of ICWA. Their initial argument is based on provisions of the ICWA11 which they
11
“(d) Remedial services and rehabilitative programs; preventive measures. Any party
seeking to effect a foster care placement of, or termination of parental rights to, an Indian
child under State law shall satisfy the court that active efforts have been made to provide
30
interpret as requiring that the juvenile court “make specified findings before ordering an
Indian child placed in foster care, or terminating parental rights.” In addition to that
federal statute, Sonia E. and Jose P. also point to a parallel state statute12 which they
construe as requiring expert testimony before either of those steps could be taken, and a
rule of court governing the type and amount of evidence needed to remove an Indian
remedial services and rehabilitative programs designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful.
“(e) Foster care placement orders; evidence; determination of damage to child. No
foster care placement may be ordered in such proceeding in the absence of a
determination, supported by clear and convincing evidence, including testimony of
qualified expert witnesses, that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the child.
“(f) Parental rights termination orders; evidence; determination of damage to child.
No termination of parental rights may be ordered in such proceeding in the absence of a
determination, supported by evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the child.” (25
U.S.C. § 1912(d)–(f).)
12
“(a) Notwithstanding Section 361.5, a party seeking an involuntary foster care
placement of, or termination of parental rights over, an Indian child shall provide
evidence to the court that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family and that
these efforts have proved unsuccessful.
“(b) What constitutes active efforts shall be assessed on a case-by-case basis. The
active efforts shall be made in a manner that takes into account the prevailing social and
cultural values, conditions, and way of life of the Indian child’s tribe. Active efforts shall
utilize the available resources of the Indian child’s extended family, tribe, tribal and other
Indian social service agencies, and individual Indian caregiver service providers.
“(c) No foster care placement or guardianship may be ordered in the proceeding in the
absence of a determination, supported by clear and convincing evidence, including
testimony of a qualified expert witness, as defined in Section 224.6, that the continued
custody of the child by the parent or Indian custodian is likely to result in serious
emotional or physical damage to the child.” (§ 361.7.)
31
child.13 The claim is that the juvenile court did not have before it the testimony of a
“qualified expert witness” concerning whether “active efforts” were made, and had no
13
“(a) Evidentiary burdens
“In any child custody proceeding listed in rule 5.480, the court may not order
placement of an Indian child unless it finds by clear and convincing evidence that
continued custody with the parent or Indian custodian is likely to cause the Indian child
serious emotional or physical damage and it considers evidence regarding prevailing
social and cultural standards of the child’s tribe, including that tribe’s family organization
and child-rearing practices.
“(1) Testimony by a ‘qualified expert witness,’ as defined in Welfare and Institutions
Code section 224.6, Family Code section 177(a), and Probate Code section 1459.5(b), is
required before a court orders a child placed in foster care or terminates parental rights.
“(2) Stipulation by the parent, Indian custodian, or tribe, or failure to object, may
waive the requirement of producing evidence of the likelihood of serious damage only if
the court is satisfied that the person or tribe has been fully advised of the requirements of
the Indian Child Welfare Act and has knowingly, intelligently, and voluntarily waived
them. Any such stipulation must be agreed to in writing.
“(3) Failure to meet non-Indian family and child-rearing community standards, or the
existence of other behavior or conditions that meet the removal standards of Welfare and
Institutions Code section 361, will not support an order for placement absent the finding
that continued custody with the parent or Indian custodian is likely to cause serious
emotional or physical damage.
“(b) Standards and preferences in placement of an Indian child
“(1) Unless the court finds good cause to the contrary, all placements of Indian
children in any proceeding listed in rule 5.480 must follow the specified placement
preferences in Family Code section 177(a), Probate Code section 1459(b), and Welfare
and Institutions Code section 361.31.
“(2) The court may deviate from the preference order only for good cause, which may
include the following considerations: [¶] (A) The requests of the parent or Indian
custodian; [¶] (B) The requests of the Indian child, when of sufficient age; [¶] (C)
The extraordinary physical or emotional needs of the Indian child as established by a
qualified expert witness; or [¶] (D) The unavailability of suitable families based on a
documented diligent effort to identify families meeting the preference criteria.
“(3) The burden of establishing good cause for the court to deviate from the
preference order is on the party requesting that the preference order not be followed.
“(4) The tribe, by resolution, may establish a different preference order, which must
be followed if it provides for the least restrictive setting.
32
written stipulation to that effect, and thus the court could not make the necessary findings
that returning custody of K.E. was likely to result in serious emotional or physical
damage to the child, that is, pretty much the identical findings it made at the dispositional
hearing.
The Department responds that the argument was forfeited because neither Sonia E.
nor Jose P. objected on these grounds in the juvenile court. This court does not recognize
the reasoning of forfeiture in the context of ICWA’s requirement of notice to the tribe
“because notice serves the interests of Indian tribes, failure to give tribal notice is not an
issue forfeited by a parent’s failure to object.” (In re Z.N. (2009) 181 Cal. App. 4th 282,
296–297; see In re Nikki R. (2003) 106 Cal. App. 4th 844, 849 [“The notice requirement is
designed to protect the interests of the tribe; to the extent a notice defect impairs the
tribe’s ability to participate, another party cannot waive it.”].)
“(5) The preferences and wishes of the Indian child, when of sufficient age, and the
parent must be considered, and weight given to a consenting parent’s request for
anonymity.
“(6) When no preferred placement is available, active efforts must be made and
documented to place the child with a family committed to enabling the child to have
visitation with ‘extended family members,’ as defined in rule 5.481(a)(4)(A), and
participation in the cultural and ceremonial events of the child’s tribe.
“(c) Active efforts
“In addition to any other required findings to place an Indian child with someone other
than a parent or Indian custodian, or to terminate parental rights, the court must find that
active efforts have been made, in any proceeding listed in rule 5.480, to provide remedial
services and rehabilitative programs designed to prevent the breakup of the Indian family,
and must find that these efforts were unsuccessful.
“(1) The court must consider whether active efforts were made in a manner consistent
with the prevailing social and cultural conditions and way of life of the Indian child’s
tribe.
“(2) Efforts to provide services must include pursuit of any steps necessary to secure
tribal membership for a child if the child is eligible for membership in a given tribe, as
well as attempts to use the available resources of extended family members, the tribe,
tribal and other Indian social service agencies, and individual Indian caregivers.” (Cal.
Rules of Court, rule 5.484.)
33
That said, no issue concerning the adequacy or efficacy of the notice to the tribe is,
or could be, presented here. K.E.’s tribe intervened virtually at the start of the
dependencies and thereafter participated fully. At best, all Sonia E. and Jose P. are in
essence arguing is that what was done at the dispositional hearing should have been done
at the permanency planning hearing. Assuming for the sake of argument that this is true,
that omission strikes us as precisely the type of error that could be corrected promptly if
brought to the attention of the trial court, the very purpose of the forfeiture rule: “ ‘[A]
reviewing court ordinarily will not consider a challenge to a ruling if an objection could
have been but was not made in the trial court. [Citation.] The purpose of this rule is to
encourage parties to bring errors to the attention of the trial court, so that they may be
corrected. [Citation.] [¶] Dependency matters are not exempt from this rule.’ ” (In re
S.B. (2004) 32 Cal. 4th 1287, 1293, fn. omitted.) The error does not implicate so
fundamental an interest as tribal notice, given that the tribe was fully involved. The error
would not have been onerous to correct, particularly as the tribe fully concurred with the
Department’s recommendations. In these circumstances, we hold that it is not contrary to
the purposes of the ICWA to apply the forfeiture rule. And for the same reasons, if the
merits were preserved for review, we would also conclude that the error was harmless
according to any standard for prejudice. (See In re G.C. (2013) 216 Cal. App. 4th 1391,
1397–1401; In re Riva M. (1991) 235 Cal. App. 3d 403, 411–413.)
DISPOSITION
The orders are affirmed.
34
_________________________
Richman, J.
We concur:
_________________________
Kline, P. J.
_________________________
Miller, J.
35
A143595, In re K.E. and A.P.
36