In re Tristan W. CA2/5 ( 2014 )

Filed 5/23/14 In re Tristan W. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re TRISTAN W., a Person Coming B251987
Under the Juvenile Court Law. (Los Angeles County Super. Ct.
No. CK77717)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
T.W., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los Angeles, Debra L. Losnick,
Juvenile Court Referee. Affirmed in part and reversed in part with directions.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and
Appellant T.W.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and
Appellant Ser. R.
Tarkian & Associates, Arezoo Pichvai for Plaintiff and Respondent.
_____________________
T.W. (father) and Ser. R. (mother) appeal from a September 24, 2013 order
terminating their parental rights as to Tristan W. under Welfare and Institutions Code
section 366.26.1 Parents challenge the dependency court’s finding that the Indian Child
Welfare Act (ICWA) does not apply in this case. Mother further contends the court erred
in finding inapplicable the sibling relationship exception to termination of parental rights.
Father challenges the sufficiency of the evidence to support a finding of Tristan’s
adoptability. Father also contends the court erroneously denied his request for a
continuance of the section 366.26 hearing so Tristan’s paternal grandmother could be
evaluated as a possible placement. We reverse for the limited purpose of directing the
court to comply with ICWA’s notice requirements. In all other respects, we affirm.
FACTS
In June 2009, the Department of Children and Family Services (Department)
removed Tristan and his three half-brothers2 from parents’ custody and filed a petition
under section 300 alleging mother and father physically abused the children, engaged in
domestic violence, and abused alcohol. The court detained the children and ordered the
Department to investigate mother’s possible Indian heritage and provide reunification
services to the parents. It later sustained a first amended petition. The Department
mailed ICWA notices to the Cherokee tribes on June 23, 2009, but copies of the notices
and the return receipts do not appear in the record on appeal. In July 2009, the
Department received letters from the Cherokee Nation stating that Tristan was not
considered an Indian child. Another letter from the United Keetoowah Band of Cherokee
Indians states that one of Tristan’s half-brothers is not an Indian child, but makes no
mention of Tristan. At a hearing on August 1, 2011, the court concluded ICWA did not
1All further statutory references are to the Welfare and Institutions Code, unless
otherwise indicated.
2 Tristan is the only minor at issue in this appeal.
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apply, stating “Apparently, I did not make an [ICWA] finding. I haven’t looked it up, but
I know that I would have made it. [¶] In any event, I know this is not a case that [ICWA]
applies to.”
Reunification Services to Parents and Visitation
Father did not comply with the case plan and initially made no effort to visit
Tristan. The court terminated father’s reunification services in September 2010. Mother
substantially complied with reunification services. At the six-month review hearing in
December 2009, the court granted mother unmonitored visits with the children, provided
she remained alcohol and drug free, and father was not present during the visits. Mother
received reunification services for close to two years. Even after the court terminated
reunification services in May 2011, it permitted unmonitored overnight and weekend
visits with the children. Mother continued to participate in individual counseling,
parenting classes, Alcoholics Anonymous, and random alcohol testing. Continuing
lapses in judgment and behavior, such as periodic alcohol and marijuana use, prevented
her from regaining custody of her children.
The court originally set a selection and implementation hearing under section
366.26 for September 2011. The hearing did not take place until two years later, in part
because the court gave both mother and father additional opportunities for visitation and
because of delays in obtaining approval of a prospective adoptive parent for Tristan.
Foster Care and Adoptive Placements
At the time mother’s four children were originally detained in June 2009, one-
year-old Tristan and his fourteen-year-old half-brother, Sem., were placed with the same
foster parent, and the two other brothers were placed with a different foster family. In
October 2010, Tristan was evaluated for a speech delay and was identified at high risk for
developmental delays. He was around two and a half years old at the time and appeared
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to be mentally and emotionally stable. Because Tristan had an issue with biting other
small children in the home when he was frustrated, the Department began looking for a
new foster home for Tristan. Faced with the prospect of Tristan’s moving to a different
foster home and his mother’s wishes that Sem. remain with Tristan, Sem. became
depressed and potentially suicidal. Sem. told a social worker he wanted to remain in the
current foster home while the Department searched for a new home for Tristan.
Tristan and Sem. were moved to different foster homes in the summer of 2011.
Tristan had some speech delays in the summer and fall of 2011, but they were being
addressed through an individualized education program. Tristan was in good health and
did well with Mrs. C., his new foster caregiver. After Mrs. C. expressed an interest in
adopting Tristan, the foster agency initiated an adoptive home study, reporting at least
twice that it expected final approval in May 2012. The Department was unaware of any
problems or concerns with the approval process until July 2012, and in fact reported in its
November 6, 2012 report that the home study was approved in September 2012. As late
as January 31, 2013, the Department reported that Tristan was in a pre-approved adoptive
home and his foster caregiver was participating in family therapy sessions addressing
prospective adoption. By April 2013, the Department was scrutinizing Mrs. C.’s
situation more closely, based on a 2009 domestic violence conviction and allegations that
Mrs. C.’s daughter had physically abused Tristan. On May 8, 2013, it determined that
Mrs. C. was not a placement option, in part because of concerns about Mrs. C.’s
suitability as either a foster or adoptive parent.
In May 2013, Tristan was placed with Mrs. B., who had been pre-approved for
adoption and had expressed an interest in adopting him. In determining Tristan’s
permanent plan for adoption, the Department considered and rejected a number of other
alternatives, including Tristan’s maternal aunt and uncle, as well as the father of Tristan’s
two middle siblings. The Department also considered Tristan’s paternal grandmother,
who lives in Michigan, but noted she had never visited or tried to call Tristan throughout
the dependency proceedings. The Department also noted in a July 16, 2013 report if Mrs.
B. adopted Tristan, he would have the opportunity to maintain a significant ongoing
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relationship with Sem., and if the adoptive placement did not work out, it would request
an evaluation of his paternal grandmother in Michigan. In a September 2013 report, the
Department recommended excluding paternal grandmother as an adoptive parent, based
on her lack of interest or any meaningful connection to Tristan.
Sem.’s Relationship with Tristan and his Request to Participate in the 366.26
Hearing
Although Tristan has known Sem. his entire life, there is a thirteen year age gap
between the two boys. Tristan turned 6 while this appeal was pending, and Sem. is 19.
The two lived together until the summer of 2011. In November 2011, the court deemed
all four siblings a sibling set and ordered sibling visitation at least twice a month. All
four siblings had monitored visits with their mother twice a month for about six months,
but then between April and October 2012, mother visited Tristan twice, and Sem. visited
Tristan only once. Between November 2012 and January 2013, Sem. visited with Tristan
about twice a month, but missed a number of visits either because he did not show up or
did not return the social worker’s phone calls to confirm the visit. Mrs. B. has indicated
she will support ongoing contact between Tristan and Sem.
Selection and Implementation Hearing
The court held the section 366.26 hearing on September 24, 2013. All parties,
including mother, father, and Sem. were represented by counsel at the hearing. The court
denied father’s request for continuance to allow an interstate investigation into the
suitability of paternal grandmother as a placement option. The court also rejected
mother’s argument that the relationship between Tristan and Sem. was significant enough
to warrant application of the sibling relationship exception to termination of parental
rights.
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DISCUSSION
A. ICWA
Appellants contend the Department failed to comply with the notice requirements
of ICWA and the court erred in finding ICWA inapplicable. The Department concedes
that remand is necessary for proper ICWA notices. We agree.
We apply the substantial evidence standard of review to the trial court’s finding
that ICWA does not apply. (In re Asia L. (2003) 107 Cal. App. 4th 498, 506.) ICWA is a
federal statutory scheme “designed to promote the stability and security of Indian tribes
and families by establishing minimal standards for removal of Indian children from their
families and 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.’” (In re Marinna J. (2001) 90
Cal. App. 4th 731, 734 (Marinna J.), quoting 25 U.S.C. § 1902.) Whenever the
dependency court knows or has reason to know that an Indian child is involved in a
dependency proceeding, notice must be given to the tribe, and the tribe’s response will
determine if the child is an Indian child. (25 U.S.C. § 1912(a); In re Jose C. (2007) 155
Cal. App. 4th 844, 848.) “The notice must include the names of the child’s ancestors and
other identifying information, if known, and be sent registered mail, return receipt
requested.” (In re Brooke C. (2005) 127 Cal. App. 4th 377, 384.) Copies of the notices
sent, the returned receipts, as well as any correspondence received from the tribes, must
be filed with the court. (Cal. Rules of Court, rule 5.482(b); Marinna J., supra, 90
Cal.App.4th at pp. 739-740, fn. 4.)
The court’s determination that ICWA did not apply to the proceedings was not
supported by substantial evidence because the Department did not file the notices sent to
various tribes after mother stated that she or father may have some American Indian
ancestry. It is unclear whether the Department sent a notice to the Bureau of Indian
Affairs, and the response from the United Keetoowah Band of Cherokee Indians raises
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concerns that the Department’s notice may have identified one of Tristan’s half-siblings,
but not Tristan. Without evidence that the Department had complied with its legal
obligation to notify the relevant tribal entities of the dependency proceeding involving
Tristan, the court lacked substantial evidence to support a finding that ICWA did not
apply. Because compliance with ICWA is jurisdictional, we reverse the order
terminating parental rights and remand for the limited purpose of ensuring compliance
with ICWA’s notice requirements. If no tribe comes forward, the dependency court shall
reinstate its order terminating parental rights. (Tina L. v. Superior Court (2008) 163
Cal. App. 4th 262, 268.)
B. Sibling Exception to Termination of Parental Rights
Mother contends it was error to terminate her parental rights because substantial
evidence supports the application of the sibling relationship exception under section
366.26, subdivision (c)(1)(B)(v), in light of the relationship between Tristan and his
oldest brother. We agree with the court’s finding that the evidence regarding the extent
and nature of that relationship is insufficient to meet the legal requirements of the sibling
relationship exception.
We apply the substantial evidence standard of review when a party challenges the
dependency court’s determination that an exception under section 366.26, subdivision
(c)(1)(B) does not apply. (In re L.Y.L. (2002) 101 Cal. App. 4th 942, 947 (L.Y.L.); In re
Autumn H. (1994) 27 Cal. App. 4th 567, 576; compare In re Bailey J. (2010) 189
Cal. App. 4th 1308, 1314–1315 [applying both substantial evidence and abuse of
discretion standards of review in a two-step process]; In re Aaliyah R. (2006) 136
Cal. App. 4th 437, 449 [abuse of discretion standard of review].)3 If supported by
3 “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
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substantial evidence, the judgment or finding must be upheld, even though substantial
evidence may also exist that would support a contrary result and the dependency court
might have reached a different conclusion had it determined the facts and weighed
credibility differently. (In re Dakota H. (2005) 132 Cal. App. 4th 212, 228.) “We do not
reweigh the evidence or exercise independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court. [Citations.]” (In re Matthew S.
(1988) 201 Cal. App. 3d 315, 321.)
The sibling relationship exception applies when a court finds a compelling reason
that terminating parental rights to permit adoption would be detrimental to a child
because doing so would cause “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(c)(1)(B)(v).) “To show a substantial interference with a sibling
relationship the parent must show the existence of a significant sibling relationship, the
severance of which would be detrimental to the child. Many siblings have a relationship
with each other, but would not suffer detriment if that relationship ended. If the
relationship is not sufficiently significant to cause detriment on termination, there is no
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.’ . . .”’ [Citations.] However, the abuse of discretion standard is not only traditional
for custody determinations, but it also seems a better fit in cases like this one, especially
since the statute now requires the juvenile court to find a ‘compelling reason for
determining that termination would be detrimental to the child.’ (§ 366.26, subd. (c)(1).)
That is a quintessentially discretionary determination. The juvenile court's opportunity to
observe the witnesses and generally get ‘the feel of the case’ warrants a high degree of
appellate court deference.” (In re Jasmine D. (2000) 78 Cal. App. 4th 1339, 1351, first
bracketed insertion added.)
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substantial interference with that relationship.” (L.Y.L., supra, 101 Cal.App.4th at p. 952,
fn. omitted.)
Here, the sibling relationship between Tristan and Sem. was not sufficiently
significant to cause such detriment to Tristan as to outweigh the benefit permanency
would bring to Tristan’s life. Tristan’s long-term emotional interests, due to his young
age, are better served by the permanency of adoption rather than by continued sibling
contact. Tristan and Sem. lived in the same home from the time Tristan was born until
the summer of 2011; Tristan was an infant and Sem. was a teenager during their time
living together. Sem.’s visits were sporadic, and Tristan was sad and disappointed when
Sem. did not show up for scheduled visits. There was also evidence that the age
difference between Tristan and Sem. reduced the benefits Tristan could gain from a
continued relationship with his oldest brother. Viewing the evidence in the light most
favorable to the court’s findings, any benefit from their sibling relationship was
dramatically reduced by their age difference, dissipated over the time they lived in
separate homes, and became further attenuated as Sem. repeatedly missed scheduled
visitation with Tristan. In addition, the Department reported that Tristan’s prospective
adoptive parent was open to continuing visits between Tristan and Sem. Even though
there was no post-adoption enforcement mechanism in place, termination of parental
rights did not necessarily foreclose the continuation of the sibling relationship. Although
Tristan looked forward to his visits with his oldest brother, the trial court reasonably
could infer the detriment of a possible—though far from certain—end to those visits was
minimal compared to the benefit of a permanent home.
C. Tristan’s Adoptability
Father contends that the court’s findings about Tristan’s adoptability are not
supported by substantial evidence. We disagree. We apply the substantial evidence
standard of review to the trial court’s finding of adoptability and termination of parental
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rights, viewing the evidence in the light most favorable to the court’s decision. (In re
Josue G. (2003) 106 Cal. App. 4th 725, 732.)
In order to terminate parental rights at the selection and implementation hearing,
the court must find clear and convincing evidence that the child is adoptable. (§
366.26(c); In re Sarah M. (1994) 22 Cal. App. 4th 1642, 1649–1650.) “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.) The court must focus on
whether the child’s age, physical condition, and emotional state make it difficult to find a
person willing to adopt him. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) “[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.” (Id. at p. 1650, italics omitted.) However, “it is not necessary that
the minor already be in a potential adoptive home or that there be a proposed adoptive
parent ‘waiting in the wings.’ [Citations.]” (Id. at p. 1649; see also, § 366.26, subd.
(c)(1).) It is also not necessary for the court to assess the suitability of the prospective
adoptive home, if it has found the child generally adoptable. (In re I.W. (2009) 180
Cal. App. 4th 1517, 1526 (I.W.).) But if the court’s finding of adoptability is based solely
on the willingness of a particular family to adopt him, the court must determine whether
there is a legal impediment to adoption. (Ibid.)
Here, the record contains substantial evidence supporting the court’s finding that
Tristan is generally adoptable. This dependency proceeding began in 2009 when Tristan
was just over a year old. Although early reports by the Department noted issues with
biting and developmental delays, it does not appear that any of the issues were atypical of
a toddler working through disruptive changes in his life. Concerns about Tristan’s speech
delays were addressed, and he received consistent psychological and developmental
support. He was under the care of three different foster parents, and given his young age,
he was emotionally stable in each placement, including the time he was living with Mrs.
C. The barriers to Tristan’s planned adoption by Mrs. C. were unrelated to his age, or
physical or emotional health. Ultimately, the Department cited problems uncovered in
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Mrs. C.’s homestudy that led it to conclude, almost a full year after she had expressed
interest in adopting Tristan, that she was no longer a placement option. Nothing about
the situation raised any concerns about Tristan’s adoptability.
Shortly after deciding against permanent placement with Mrs. C., the Department
placed Tristan with Mrs. B., who was pre-approved as an adoptive parent and was highly
committed to adopting Tristan. At the July 6, 2013 hearing, Tristan was having transition
issues and the court continued the hearing. By the next hearing in September 2013,
Tristan had adjusted well and was emotionally bonded with Mrs. B. Parents argue that
the court should have ordered psychological testing and allowed more time to ensure his
current caretaker will in fact adopt him, but because substantial evidence supports
Tristan’s general adoptability, neither was legally necessary. (I.W., supra, 180
Cal.App.4th at p. 1526 [if the court’s finding of adoptability is based solely on the
willingness of a particular family to adopt a child, the court must determine whether there
is a legal impediment to adoption.].) The dependency court noted the foster parents’4
presence in the courtroom and their joy at coming one step closer to adopting Tristan.
Tristan is a well-adjusted child who is not only adoptable, but deserves to be freed for
adoption without delay. There is substantial evidence to support the trial court’s finding
that Tristan is adoptable.
D. Denial of Continuance
The dependency court did not abuse its discretion in denying father’s request for a
continuance so that the Department could evaluate placing Tristan with his paternal
grandmother in Michigan. We review the denial of a continuance for abuse of discretion.
(In re Karla C. (2003) 113 Cal. App. 4th 166, 180.) In dependency proceedings, “no
continuance shall be granted that is contrary to the interest of the minor. In considering
4 Although the court used the plural “foster parents,” only Mrs. B. was identified
as a prospective adoptive parent and the reference to a second foster parent is unclear.
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the minor’s interests, the court shall give substantial weight to a minor’s need for prompt
resolution of his or her custody status, the need to provide children with stable
environments, and the damage to a minor of prolonged temporary placements.” (§ 352,
subd. (a).)
Father’s counsel first requested consideration of paternal grandmother as a
placement option more than four months earlier, at the May 7, 2013 hearing, after it
became clear to the court and the Department that the planned placement with Mrs. C.
was no longer viable. At the time, the court expressed concern that such a placement
would impact Tristan’s relationship with his older brother, because the grandmother lived
in Michigan. “My first choice, if we are going to make a move, would be to place with
his brother, if possible. I know he would like to spend more time and have his brother
with him.” Also, the Department recommended excluding paternal grandmother as a
potential adoptive parent based on her lack of engagement. With these facts, we cannot
say the court abused its discretion in denying father’s request to continue the selection
and implementation hearing.
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DISPOSITION
The order terminating parental rights is reversed for the limited purpose of
permitting notifying appropriate tribal entities in accordance with ICWA. In all other
respects, the order is affirmed.
KRIEGLER, J.
We concur:
TURNER, P. J.
MINK, J.*
* Retired judge of the Los Angeles County Superior Court assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
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