as: 118 Cal.App.4th 1108, 13 Cal.Rptr.3d 606)
of Appeal, Fourth District, Division 1, California.
re S.M., a Person Coming Under the Juvenile Court Law.
Diego County Health and Human Services Agency, Plaintiff and Respondent,
M. et al., Defendants and Appellants.
Andrea R. St. Julian, under appointment by the Court of
Appeal, for Defendant and Appellant Ray M.
Susan Bookout, under appointment by the Court of Appeal, for
Defendant and Appellant Lucille S.
John J. Sansone, County Counsel, Susan Strom, Chief Deputy County
Counsel, and Katharine R. Bird, Deputy County Counsel, for Plaintiff
Linda M. Fabian, under appointment by the Court of Appeal,
Ray M. appeals a judgment terminating his parental rights to
his daughter, S.M., under Welfare and Institutions Code section 366.26.
Ray asserts the judgment should be reversed because (1) proper
notice was not provided under the Indian Child Welfare Act
(ICWA) (25 U.S.C. § 1901
et seq.); (2) the court abused its discretion by denying
his section 388 modification petition; and (3) the court did
not ensure S. was able to visit her half brother,
J.B. Lucille S., S.'s paternal grandmother and de facto parent,
appeals from the denial of her section 388 modification petition.
She raises no arguments relating to the denial of that
petition, but contends that the judgment should be reversed because
notice was not provided in compliance with the ICWA. Because
the Agency did not comply with the notice provisions of
the ICWA, we reverse the judgment terminating parental rights and
direct the court to ensure proper notice under the ICWA
All statutory references are to the Welfare and Institutions Code,
unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
The San Diego County Health and Human Services Agency (the
Agency) removed S. from the custody of her mother, T.D.
(T.), shortly after her April 2001 birth and filed a
section 300 petition on her behalf. The petition alleged S.
was at risk because T. was incarcerated and Ray's whereabouts
were unknown. Shortly after S. was removed from T.'s custody,
Lucille told the social worker that S. looked "just like
my mother; you can see the Indian in **609
her," and there was "Cherokee blood, on my mother's side."
At the May 2001 jurisdictional and dispositional hearing, the court
made a true finding on the petition. However, because T.'s
five other children had previously been declared dependents and did
not reunify with her, the court did not order reunification
services and scheduled a section 366.26 hearing. Although not clear
from this record, it appears that because Ray was an
alleged father, he was not offered services. In August 2001
the court found Ray was S.'s biological father and entered
a judgment of paternity.
In November 2001 Ray filed a section 388 modification petition
seeking to vacate the order referring the matter to a
section 366.26 hearing and to obtain services because he had
been declared S.'s biological father. Later that
month, the court denied his petition. At the contemporaneous section
366.26 hearing, the court terminated parental rights after finding S.
was adoptable and none of the section 366.26, subdivision (c)(1)
exceptions applied. Ray timely appealed.
In June 2002 we reversed the judgment terminating parental rights
because Ray had not received adequate notice of the jurisdictional
and dispositional hearings. (In
(June 18, 2002, D039069) 2002 WL 1316390 [nonpub. opn.].) We
did not address Ray's contention that notice had not been
provided under the ICWA, but because there was sufficient evidence
S. might be an Indian child, we directed the court
to assure proper notice was given under the ICWA. (Id.
at pp. 9, 11, at ** 4, 5.)
Following remand by this court, Ray told the social worker
his grandmother, Lillian, may have been registered with one of
the Cherokee tribes and before her death resided in Beaumont,
Texas. In August 2002 the social worker sent notices to
the Cherokee Indian tribes and *1114
the Bureau of Indian Affairs (BIA). The Eastern Band of
Cherokee Indians and the United Keetoowah Band of Cherokee Indians
responded that, based on the information provided by the Agency,
S. was not eligible for enrollment in their tribes. The
Cherokee Nation of Oklahoma requested more information about S.'s family
members to verify Cherokee heritage.
In late August the Agency filed an amended petition, alleging
S. was at risk
of harm because of her parents' drug use. At the
detention hearing, the court found notice had been provided pursuant
to the ICWA and the ICWA did not apply. In
October the court made a true finding on one allegation
in the petition, granted Lucille's de facto parent application, declared
S. to be a dependent, and removed her from T.'s
custody. The court denied reunification services for both parents and
scheduled a section 366.26 hearing. Ray and Lucille filed petitions
for extraordinary writ relief under California Rules of Court, rule
[FN2] which this court denied in April 2003. (Ray
M. v. Superior Court
(Apr. 25, 2003, D041129) 2003 WL 1950373 [nonpub. opn.].)
All rule references are to the California Rules of Court.
In July 2003 Lucille, Ray, and T. each filed a
section 388 modification petition. Lucille sought a hearing to review
the Agency's decision not to place S. with a paternal
uncle and aunt. Ray and T. sought to vacate the
section 366.26 hearing and obtain six months of services to
reunify with S.T. also sought S.'s return to her custody.
The next month the Agency received a letter from the
Cherokee Nation of Oklahoma stating it had received no response
to its previous request for information and reiterating it was
unable to **610
verify S.'s Indian heritage without further information.
In September 2003 the court denied the section 388 modification
the court found S. was adoptable and none of the
section 366.26, subdivision (c)(1) exceptions applied, and terminated parental rights.
and Ray assert the judgment must be reversed because notice
of these proceedings was not given in compliance with the
We question whether Lucille has standing to assert violations of
the ICWA. Congress has granted standing to challenge findings made
in violation of the ICWA to the Indian minor, the
minor's tribe, or the parent or Indian custodian from whose
custody the minor was removed. (25 U.S.C. § 1914.)
Of these, Lucille could only be S.'s Indian custodian. However,
it is not clear she had custody within the meaning
of the ICWA. (See Matter
of Adoption of a Child of Indian Heritage
(N.J.1988) 543 A.2d 925, 937 [25 U.S.C. § 1914
refers to legal, not physical, custody of a minor].) However,
because no party has raised the issue of standing, it
has been waived. (In
re Christopher I.
(2003) 106 Cal.App.4th 533, 548, fn. 1, 131 Cal.Rptr.2d 122.)
We also question whether Lucille may appeal from the denial
of her section 388 modification petition without raising issues related
to that petition. However, we need not resolve these questions
because Ray, who has standing, has also raised the issue
notice under the ICWA.
Congress enacted the ICWA
in 1978 to "protect the best interests of Indian children and to
promote the stability and security of Indian tribes and families...."
(25 U.S.C. § 1902.) It allows a tribe to intervene in
state court dependency proceedings (25 U.S.C. § 1911(c)) because
the "ICWA presumes it is in the best interests of the child to retain
tribal ties and cultural heritage and in the interest of the tribe to
preserve its future generations, a most important resource." (In
re Desiree F. (2000)
83 Cal.App.4th 460, 469, 99 Cal.Rptr.2d 688.)
"[W]here the court knows or has reason to know that
an Indian child is involved, the party seeking the foster
care placement of, or termination of parental rights to, an
Indian child shall notify the parent or Indian custodian and
the Indian child's tribe, by registered mail with return receipt
requested, of the pending proceedings and their right of intervention."
(25 U.S.C. § 1912(a).)
Notice to the tribe provides it the opportunity to assert
its rights. (In
re Karla C.
(2003) 113 Cal.App.4th 166, 174, 6 Cal.Rptr.3d 205.) "Notice shall
be sent whenever there is reason to believe the child
may be an Indian child, and for every hearing thereafter
unless and until it is determined that the child is
not an Indian child." (Rule 1439(f)(5).) No proceeding
to terminate parental rights may occur until 10 days after
the tribe has received the notice. (25 U.S.C. § 1912(a).)
We may void a judgment terminating parental rights if notice
to the tribes or BIA is not given in accordance
with provisions of the ICWA. (25 U.S.C. § 1914.)
Lucille and Ray contend reversal of the judgment is required
because the Agency did not include information about Lillian in
the August 2002 notices it sent to the Cherokee tribes
and the BIA.
of the primary purposes of giving notice to the tribe is to enable it
to determine whether the minor is an Indian child. (In
re D.T. *1116
(2003) 113 Cal.App.4th 1449, 1455, 5 Cal.Rptr.3d 893.) Notice is
meaningless if no information or insufficient **611
information is presented to the tribe.
at p. 1455, 5 Cal.Rptr.3d 893.) The notice must include the name, birthdate,
and birthplace of the Indian child; his or her tribal affiliation;
a copy of the dependency petition; the petitioner's name;
a statement of the right of the tribe to intervene in the proceeding;
and information about the Indian child's biological mother, biological
father, maternal and paternal grandparents and great-grandparents or Indian
custodians, including maiden, married and former names or aliases, birthdates,
places of birth and death, current and former addresses, tribal enrollment
numbers, and/or other identifying information. (In
re Karla C., supra,
at p. 175, 6 Cal.Rptr.3d 205; In
re C.D. (2003) 110
Cal.App.4th 214, 225, 1 Cal.Rptr.3d 578; 25 C.F.R. § 23.11(a),
The State of California Health and Welfare Agency and the
Department of Social Services have issued two forms to comply
with the notice provisions of the ICWA. (In
re Jeffrey A.
(2002) 103 Cal.App.4th 1103, 1108, 127 Cal.Rptr.2d 314.) The forms
are entitled " 'Request for Confirmation of Child's Status as
Indian' (form 'SOC 318') and 'Notice of Involuntary Child Custody
Proceedings Involving an Indian Child' (form 'SOC 319')." (Ibid.)
The social worker has "a
duty to inquire about and obtain, if possible, all of the information
about a child's family history" required by 25 Code of Federal Regulations
part 23.11(d)(3). (In
re C.D., supra, 110
Cal.App.4th at p. 225, 1 Cal.Rptr.3d 578.) However, the initial
appellate record shows no information was provided in the ICWA notices
about Lucille or Lillian, the person with alleged Indian heritage. Information
about Lucille was indisputably available because she was the minor's de
facto parent. (See In
re Jennifer A. (2002)
103 Cal.App.4th 692, 705, 127 Cal.Rptr.2d 54.) It is also likely
Lucille had information about Lillian. However, the initial appellate
record contains no evidence the social worker attempted to gather information
from Lucille. Because the notices contained no information about
Lillian or Lucille, the tribes could not conduct a meaningful search with
the information provided. (See, e.g., In
re Jennifer A., supra,
103 Cal.App.4th at p. 705, 127 Cal.Rptr.2d 54; see also In
re D.T., supra, 113
Cal.App.4th at p. 1455, 5 Cal.Rptr.3d 893.) The court erred in determining
the notice provisions of ICWA had been satisfied.
The Agency concedes the initial appellate record does not show
that the ICWA notice requirements were satisfied. However, it urges
us to affirm because it contends the error was cured
with the notices sent to the BIA *1117
and the recognized Cherokee tribes in August 2002, which are
part of the augmented appellate record.
[FN5] We **612
may conclude the inadequate initial ICWA notice is harmless if
the August 2002 notices sent by the Agency comply with
the ICWA. (In
re C.D., supra,
110 Cal.App.4th at pp. 224, 226-227, 1 Cal.Rptr.3d 578.)
We have granted the Agency's request to augment the record
with notices sent by the social worker to the BIA
and the recognized Cherokee tribes in August 2002 and the
signed return receipt cards received by the Agency. We have
also granted Lucille's request to augment the record with letters
sent by the Cherokee Nation of Oklahoma to the social
worker in August
2002 and August 2003. We recognize the Supreme Court has
stated postjudgment evidence may not, except in extraordinary circumstances, be
used as a basis to reverse a termination of parental
rights on appeal. (In
re Zeth S.
(2003) 31 Cal.4th 396, 413-414, 2 Cal.Rptr.3d 683, 73 P.3d
541.) However, In
re Zeth S.
did not bar postjudgment evidence; it stated an appellate court
could consider such evidence in extraordinary circumstances. (Alicia
B. v. Superior Court
(2004) 116 Cal.App.4th 856, 866, 11 Cal.Rptr.3d 1.) In Alicia
this court held it was appropriate to augment the record
with the ICWA notices sent by the Agency because the
evidence is not new and denying the motion would be
counterproductive to the strong public policy of expeditiously resolving a
minor's issues on appeal. (Alicia
at p. 867, 11 Cal.Rptr.3d 1.) We recognize no party
had an opportunity to challenge the sufficiency of the notices
before the juvenile court and agree all parties and the
courts would be better served if the adequacy of the
notices were litigated before the trier of fact in the
first instance. However, it is important to augment the record
here to address the deficiencies in the notices, to avoid
further appellate intervention following remand. (See In
re Louis S.
(2004) 117 Cal.App.4th 622, 630, fn. 4, 12 Cal.Rptr.3d 110.)
The augmented record shows the
social worker provided the BIA, the United
Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians,
and the Cherokee Nation of Oklahoma with Lucille's name, birthdate, and
birthplace, the name of S.'s paternal grandfather, and the names, birthdates,
and states of birth for S.'s paternal great-grandparents. However,
the August 2002 notices still do not comply with the requirements of 25
Code of Federal Regulations part 23.11. They did not include T.'s
aliases, the birthdate and birthplace of the paternal grandfather, the
birthplace of S.'s paternal great-grandparents, the places of death if
any relatives are deceased, or any current or former addresses. It
is also not clear whether each woman's married or maiden name was provided.
The social worker did not say this information is unavailable. The
social worker was required to investigate whether this information was
available (In re C.D.,
supra, 110 Cal.App.4th
at p. 225, 1 Cal.Rptr.3d 578), or report no family member knew the information
required by 25 Code of Federal Regulations part 23.11.
Further, S.'s paternal great-grandfather's date of birth is identified as
"12-31-88." We question whether that date is accurate. It is
plain that he *1118
could not have been born in 1988, and it is
not clear that he was born in 1888. This question
underscores the importance of filing the notices with the juvenile
court. Had the notices been properly filed in the first
instance, this question could have been addressed and resolved below.
Because the notices were incomplete, the tribes and the BIA
could not conduct a meaningful search.
(See, e.g., In
re Jennifer A., supra,
103 Cal.App.4th at p. 705, 127 Cal.Rptr.2d 54.)
In addition, in August 2002 the Cherokee Nation of Oklahoma
asked for additional information about the maternal grandparents and the
paternal grandfather, "[i]n order to verify Cherokee heritage." The Cherokee
Nation of Oklahoma also requested "dates of birth for everyone
and maiden names of all females. It is impossible to
validate or invalidate this claim without more complete family information."
One year later, having received no response to its first
letter, the Cherokee Nation of Oklahoma sent another letter to
the Agency, stating the tribe "notified [the social worker] that
it was impossible to validate or invalidate any claim to
Cherokee heritage without more complete family information. Our notice explained
exactly what type of information was needed and asked [the
social worker] to diligently research, to the best of [her]
ability, and supply as much as possible." The social worker,
however, did not respond to this letter. The Agency has
not provided an explanation for not responding to these requests
for information other than conjecture at oral argument that the
letters were incorrectly filed.
We are troubled that the Agency
did not file these letters with the juvenile court or seek to augment
our record with them. The Agency is required to file with **613
the trial court all responses it receives from any tribes. (In
re Karla C., supra,
113 Cal.App.4th at pp. 175-176, 178, 6 Cal.Rptr.3d
205; In re H.A.
(2002) 103 Cal.App.4th 1206, 1214-1215, 128 Cal.Rptr.2d 12.) Not
filing the tribes' responses aids neither the courts nor the parties and
does not serve the purpose of the ICWA. We infer from these letters that
the Cherokee Nation of Oklahoma may believe S. has Indian heritage. If,
after remand, the Cherokee Nation of Oklahoma determines she does and
chooses to intervene, the Agency's failure to provide sufficient information
in a timely fashion will have unnecessarily delayed resolution of this
proceeding. The purpose of the ICWA is to promote the stability
and security of Indian tribes. (25 U.S.C. § 1902.) That
security is not promoted when the Agency does not respond to a tribe's
request for information. The court's error of finding the ICWA did
not apply in this proceeding was not cured by information contained in
the Agency's augmentation of the record.
Ray and Lucille also argue the matter should be reversed
because (1) S.'s birth certificate and a copy of the
dependency petition were not sent with the notice; (2) S.'s
full name was not provided; (3) the notices were not
sent by certified mail; and (4) there is no evidence
the BIA or the Cherokee Nation of Oklahoma received notice
because the Agency did not file proofs of service. We
need not address these arguments, because other grounds exist for
reversal. However, we urge the Agency to comply with the
provisions of the ICWA when it provides
notice following remand.
We reluctantly remand this matter to the juvenile court for
the second time, particularly because this reversal was entirely preventable.
By the time this opinion is filed, S. will have
been in the juvenile system for over three years. However,
given the deficiencies in compliance with the notice provisions of
the ICWA, we have no alternative but to reverse the
matter for proper notice to be provided to the tribes
and the BIA.
However, we do not require that all orders in the
matter be reversed if S. is found to be an
Indian child. Although Ray relies on In
re Amirah H.
(2003) 113 Cal.App.4th 709, 6 Cal.Rptr.3d 787 for that proposition,
that case has been depublished and is not citable as
asserts the court abused its discretion by denying his section 388 modification
petition seeking to vacate the referral to the section 366.26 hearing
and to obtain six months of services. Under section 388, a parent
may petition the court to change, modify, or set aside a previous court
order. The petitioning party has the burden of showing, by a preponderance
of the evidence, that there is a change of circumstances or new evidence,
and the proposed
modification is in the minor's best interests. (§ 388; In
re Jasmon O. (1994)
8 Cal.4th 398, 415, 33 Cal.Rptr.2d 85, 878 P.2d 1297.)
petition is addressed to the sound discretion of the juvenile court and
its decision will not be disturbed on appeal in the absence of a clear
abuse of discretion. [Citations.]" (In
re Jasmon O., supra,
8 Cal.4th at p. 415, 33 Cal.Rptr.2d 85, 878 P.2d 1297.) " '["]The
appropriate test for abuse of discretion is whether the trial court *1120
exceeded the bounds of reason. When two or more inferences can reasonably
be deduced from the facts, the reviewing **614
court has no authority to substitute its decision for that of the trial
court." ' [Citations.]" (In
re Stephanie M. (1994)
7 Cal.4th 295, 318-319, 27 Cal.Rptr.2d 595, 867 P.2d 706.)
Because the Agency conceded,
[FN7] and the court accepted, that Ray's circumstances had changed,
we address only whether the court abused its discretion in
determining that because Ray had no relationship with her, it
was not in S.'s best interests to grant the petition.
In examining that finding, we consider the bond between Ray
and S. and the bond between S. and her current
re Kimberly F.
(1997) 56 Cal.App.4th 519, 531, 65 Cal.Rptr.2d 495.)
The Agency attempted to withdraw its concession that Ray's circumstances
had changed, but the court did not allow the Agency
to do so because
of the earlier stipulation.
The social worker believed S. considered Ray a stranger. She
did not want to visit with him and was anxious
about being alone with him. During visits, she rejected his
attempts to show affection. When he attempted to talk to,
hold, or kiss her, she turned her head away, said
"stop it," ran away, or cried. When he asked her
for something or tried to engage her, she said "no
stop," "I don't want to," or "no, no," or tried
to hit him, pushed him away, or turned her head
away. She tried to close the door to the visitation
room to prevent his entry. She did not ask about
him between visits or talk about his visits after they
In contrast, S. saw her foster parents as parents. She
relied on them to meet her needs and was "clearly
bonded" to them. She felt secure and comfortable with them.
Further, Ray did not act in a parental manner. He
did not come prepared for visits with food or diapers,
did not call S. on her birthday or give her
a gift, or call the foster parents between visits. He
did not regularly visit. Between April and September 2001, he
visited S. only three times. He did not contact the
social worker for visits or to check on S.'s well-being
November 2002 and May 2003. He requested visits in May
2003, but either did not attend or was often late
to the visits she arranged. He apparently
did not visit S. between July 3 and September 10,
[FN8] He also acted inappropriately. While waiting in the court
hallway to testify at the section 366.26 hearing, the foster
mother saw Ray hit T. in the face with his
Although Ray testified he attempted to obtain more visits with
S., the court found him to be not credible, a
determination we do not reweigh. (In
re Casey D.
(1999) 70 Cal.App.4th 38, 52-53, 82 Cal.Rptr.2d 426.)
Relying on In
re Kimberly F., supra,
56 Cal.App.4th 519, 65 Cal.Rptr.2d 495, Ray asserts we should
find the court abused its discretion because it did not
focus on the benefit S. would gain from continuing her
relationship with Lucille and other parental relatives, which would occur
if Ray received services. However, In
re Kimberly F.
stated that the "simple best interest test" ignored the bonds
between a father, a mother, a sister, and a brother,
and devalued the minor's interests in preserving an existing family
at pp. 529-530, 65 Cal.Rptr.2d 495.) It does not stand
for the proposition that the court had to consider the
minor's relationship with extended family members.
is no dispute S. had a bond with Lucille; however, " '[f]amily
ceases to be of overriding concern if a dependent child cannot be safely
returned to parental custody and the juvenile court terminates reunification
services. Then, the focus shifts from the **615
parent's interest in reunification to the child's interest in permanency
and stability.' " (In
re Richard C. (1998)
68 Cal.App.4th 1191, 1195, 80 Cal.Rptr.2d 887.) Accordingly, the
court had no reason to focus on S.'s relationship with Lucille or other
parental relatives. The social worker believed terminating parental
rights was in S.'s best interests because she did not have a relationship
with Ray. Ray introduced no contrary expert evidence or any evidence S.
would be harmed if her relationship with Lucille or other parental relatives
ended. The court did not abuse its discretion in denying Ray's section
388 modification petition.
Ray asserts the judgment must be reversed because the trial
court did not ensure S. visited her half brother J.,
which limited his ability to argue that the *1122
sibling relationship exception of section 366.26, subdivision (c) (1)(E) applied.
The Agency asserts Ray has waived his right to argue
about alleged deficiencies in sibling visitation by not bringing a
writ petition under rule 39.1B or appealing from earlier proceedings.
Because Ray is not
arguing about sibling visitation for any time period prior to
the referral hearing, there is no waiver for not timely
appealing earlier rulings. The Agency also asserts Ray has waived
his right to raise the issue here because he did
not raise the issue in the juvenile court. Although the
Agency is correct that Ray did not raise the issue
of sibling visitation, it came before the juvenile court in
the context of Lucille's section 388 modification petition. We apply
the waiver doctrine when a party complains on appeal about
an action the court could have corrected had the issue
been raised below. (See People
(2002) 98 Cal.App.4th 1056, 1060, 120 Cal.Rptr.2d 687.) Because the
juvenile court here had the opportunity to address the issue
of sibling visitation, there is no waiver.
Ray correctly asserts the Legislature has recognized the importance of
sibling relationships. (See, e.g., §§ 366.26,
subd. (c)(1)(E), 16002.) However, in enacting section 366.26, subdivision (c)(1)(E),
"the [L]egislature was concerned with preserving long-standing relationships between siblings
[that] serve as anchors for dependent children whose lives are
in turmoil." (In
re Erik P.
(2002) 104 Cal.App.4th 395, 404, 127 Cal.Rptr.2d 922; see also
subd. (a) ["It is the intent of the Legislature to
maintain the continuity of the family unit, and ensure the
preservation and strengthening of the
child's family ties by ensuring that when siblings have been
removed from their home, ... the siblings will be placed
in foster care together ..."].) The Legislature wanted to protect
sibling relationships because they become even more important after children
have lost their homes, parents, schools, and friends. (In
re Erik P., supra,
104 Cal.App.4th at p. 404, 127 Cal.Rptr.2d 922.) " '
"Siblings are the only family, the last link to normalcy,
that these children have left." ' " (Ibid.)
S. and J., however, do not have a "long-standing relationship."
S. was removed from T.'s custody at birth. J., who
is not T.'s child, has lived with S. for, at
most, one month.
[FN10] The social worker was unaware S. had any relationship
with J. These facts show the court need not have
ordered sibling visitation because there was no relationship of the
type the Legislature seeks to protect. Ray has cited no
authority that requires the Agency to develop a relationship between
siblings that did not exist at the time a juvenile
petition was filed. Although Ray implies section 16002 places a
duty on the Agency to ensure sibling visits occur, this
section does so only in the *1123
context of both siblings having been removed from parental custody
16002, subd. (b)), which was not the case here.
Lucille implied J. lived with her for most of the
six months S. was also living with her. However, J.
disagreed and the court found him to be
more a credible witness than Lucille. We may not reweigh
that credibility determination. (In
re Casey D., supra,
70 Cal.App.4th at pp. 52-53, 82 Cal.Rptr.2d 426.)
We contrast the relationship between
S. and J. with the parent and minors in the case relied on by Ray, In
re David D. (1994)
28 Cal.App.4th 941, 33 Cal.Rptr.2d 861. There, the juvenile court
suspended the mother's visitation with her children until she provided
the court with her medical records. (Id.
at p. 945, 33 Cal.Rptr.2d 861.) The appellate court determined the
visitation suspension was erroneous because suspending visits was not
in the minors' best interests. (Id.
at p. 953, 33 Cal.Rptr.2d 861.) The court was also concerned because
depriving the mother of visits eliminated her ability to meet the first
prong of the section 366.26, subdivision (c)(1)(A) exception even though
there was "overwhelming" evidence of the minors' bond with their
D., at p. 955, 33 Cal.Rptr.2d
861.) Here, there was no evidence S. had any bond with J. Although
we recognize that visitation is an essential component of maintaining
a bond between siblings and limiting visits might impact the parent's
ability to establish the section 366.26, subdivision (c)(1)(E) exception
to termination of parental rights, there is no requirement to provide
visitation to create a bond that does not exist.
Further, it appears the court did not have jurisdiction over
J. to order visits. J. was not a dependent. It
is not apparent Ray had legal custody of J. to
enable the court to order Ray to facilitate visitation. Without
having jurisdiction over J., the court could not order visits.
[FN11] Ray has not demonstrated reversible error.
In any event, it appears S. saw J. "often enough,"
from which we infer visits occurred.
The judgment terminating parental rights is reversed. The court is
directed to ensure that proper notice is given under the
ICWA. If, after receiving notice, no tribe intervenes, the juvenile
court shall reinstate the judgment. (See Dwayne
P. v. Superior Court
(2002) 103 Cal.App.4th 247, 261, 126 Cal.Rptr.2d 639.)
WE CONCUR: BENKE, Acting P.J., and AARON, J.