In Re C.B Et Al.

In re C.B et al., Persons Coming Under the Juvenile Court Law.SANTA CLARA COUNTY DEPARTMENT OF FAMILY AND CHILDREN'S SERVICES, Plaintiff and Respondent,

v.C.K. et al., Defendants and Appellants.

H035085

No. JD 18556

No. JD18557

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

Filed: November 18, 2010

CERTIFIED FOR PUBLICATION

Dependency proceedings (Welf. & Inst. Code, § 300 et seq.)¹ were commenced on behalf of siblings C.B. and M.B. ("children") and their older sister C. The juvenile court terminated parental rights as to the children and selected a permanent plan of adoption. (See § 326.26.) Mother C.K. ("mother") and father C.B. ("father") appeal from the order terminating their parental rights. (§ 395.)

On appeal, mother contends that the judgment terminating parental rights must be reversed because (1) substantial evidence does not support the juvenile court's determination that the parent-child relationship exception did not apply (§ 366.26, subd. (c)(1)(B)(i)), (2) substantial evidence does not support the juvenile court's determination that the Indian child exception did not apply (§ 366.26, subd. (c)(1)(B)(vi)), and (3) adequate notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) was not provided to the Choctaw and Seneca tribes. Father joins in these arguments.

On appeal, father contends that the judgment terminating parental rights must be reversed because (1) substantial evidence does not support the juvenile court's determination that the sibling relationship exception did not apply (§ 366.26, subd. (c)(1)(B)(v)) and (2) the court lacked substantial evidence to find that the Santa Clara County Department of Family and Children's Services ("DFCS" or "Department") engaged in "active efforts" to enroll the children in the Cherokee Nation (§ 361.7; Cal. Rules of Court, rule 5.484 (c)).² Mother joins in these arguments.

We reverse for limited purposes, specifically to allow adequate notice to be provided to the Seneca tribes and to allow the court to determine, under the proper standard, the applicability of the parent-child relationship exception to termination of parental rights.

A. Procedural History

1. Background

On October 19, 2007, juvenile dependency petitions were filed on behalf of C.B. and M.B. They alleged jurisdiction on grounds of parental failure to protect (§ 300, subd. (b)) and no provision for support (§ 300, subd. (g)).

On October 23, 2007, amended juvenile dependency petitions (§ 300, subds. (b) and (g)) were filed on behalf of the children. On November 14, 2007, second amended juvenile dependency petitions (§ 300, subd. (b)) were filed on behalf of the children.

On December 31, 2007, third amended petitions (§ 300, subd. (b)) were filed on behalf of the children. The petitions alleged the following facts.

Mother had been incarcerated on October 18, 2007 and father was serving a 19 year prison sentence. On October 19, 2007, an emergency response social worker had placed the children in protective custody pursuant to a custody warrant. The protective custody warrant was issued because mother had left the children in the care of her boyfriend who was an inappropriate caretaker. The boyfriend had a significant criminal history and physical limitations that impeded his ability to care for the children. The children reported that the boyfriend slept all the time and drank beer. The boyfriend was facing eviction from a trailer park.

On October 1, 2007, an emergency response social worker had found the trailer home cluttered and large piles of debris outside. Sewage was leaking into the home due to a sewage system problem in the RV park. The trailer's condition presented a health hazard to the children that placed them at substantial risk.

Mother had substance abuse problems and mental health issues impeding parenting. She had admitted smoking marijuana and consuming alcohol and she was depressed and sleeping all day. Her untreated mental health issues placed the children at substantial risk of harm.

Mother was not meeting the children's basic needs. Their older sister C. had not attended school from September 24, 2007 to October 19, 2007 and she had previous unexcused absences. The children were usually dressed in dirty clothing and unkempt. The children were sometimes responsible for getting up and getting themselves to schoolin the morning, which involved crossing a major busy intersection without adult supervision.

On May 1, 2007, law enforcement had found the trailer in disarray with debris, clothing, trash and dirty dishes around. The refrigerator was "overrun with mold, mildew, and the smell of spoiled food." Law enforcement found a "marijuana pipe next to the door, a water marijuana pipe on the counter next to the children's clothing, and a broken glass drug pipe in the medicine cabinet above the toilet." The shower was covered with items and appeared unavailable for use. The children had been placed in protective custody and mother had been charged with cruelty to a child and the charges were pending.

The Gardner Family Care Center had been involved with the family since August 2, 2007. The family had been offered Differential Response Services through the center and the center had provided intensive weekly services, which had not stabilized the family.

According to the petitions, mother had a criminal history that included a DUI and driving without a license conviction on December 12, 2006, second degree burglary, petty theft, and false personation. Charges of false imprisonment and drunk in public against mother were also pending. Father had committed violence against the mother and had been arrested for domestic violence on December 24, 2004.

The Jurisdiction/Disposition Report, filed February 21 2008, reported six prior referrals to child welfare for the family between January 2002 and July 2007. The children had been placed in a foster home. Their older sister C. had been placed in a group home.

The third-amended dependency petitions were amended on their faces to delete the allegation that mother was charged with child endangerment and to instead state thatmother had pleaded no contest to contributing to the delinquency of a minor pursuant to Penal Code section 272, subdivision (a), and was awaiting sentencing.

After the jurisdiction hearing, the juvenile court found the allegations of the third amended petitions, as amended, true and found the children were described by section 300, subdivision (b). At the disposition hearing, the court adjudged the children dependent children of the court. It ordered family reunification services for mother and, under section 361.5, subdivision (e), it ordered the DFCS to not provide family reunification services to father. The court ordered supervised visits two times a week for mother and supervised visits four times a year, with prison approval, for father.

On July 23, 2008, following the six-month status review, the court ordered the children to continue under the care, custody and control of the DFCS in foster placement and ordered the children and mother to continue receiving services from the family reunification program. The court ordered supervised visits of two hours twice a week for the mother and supervised visits four times a year, with prison approval, for father.

The status review report for the 12-month hearing provided the following information about mother. She had not maintained contact with the social worker and had missed several scheduled appointments. Mother had not enrolled in the recommended Advanced Parenting Program because she had not met with the social worker for several months. Mother had not attended individual counseling despite referrals for therapists and she had not complied with drug testing. Mother had stated she was attending AA/NA meetings regularly but she had not provided meeting attendance sheets and she had not provided contact information regarding her sponsor. Mother had failed to engage in an outpatient drug program as recommended. Mother had attended most of the classes for a domestic violence support group but had not obtained a certificate of completion.

On January 8, 2009, following the 12-month review, the court terminated family reunification services for mother. It ordered the children to continue under the care, custody and control of the DFCS for placement with an approved relative or non-relative extended family member. The court ordered supervised visits of two hours once a month in the county in which the children resided for mother and supervised visits four times a year, with prison approval, for father.

On June 15, 2009, the court held a hearing for purposes of ensuring compliance with ICWA notice requirements.

On September 9, 2009, mother's counsel told the court that mother needed the court's assistance with maintaining contact with her children, who were residing with their aunt and uncle in Bakersfield. Mother's counsel reported that mother could not reach the children by phone and their caretakers were not taking her calls. The court indicated that mother was entitled to talk to the children at least once a week and caregivers were required to make the children available for that contact. The court ordered parents to be present at contested section 366.26 hearing scheduled for October 28 and 29, 2009.

2. Section 366.26 Hearing

The juvenile court admitted into evidence and considered the "366.26 Report" (dated May 7, 2009), four addendum reports (a report dated May 7, 2009, a report dated August 17, 2009 and signed August 12, 2009, a report dated August 17, 2009 and signed August 14, 2009, and a report dated October 28, 2009), the curricula vitae of social worker Eva Jones-Ransom and ICWA expert Sean Osborn, the declaration of Sean Osborn, and two ICWA response letters.

The "366.26 WIC Report" provided the following history. Between October 2007 and December 2008, mother always attempted to attend the twice a week supervised...