1 Filed 4/18/13 In re Rachael W. CA2/6 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

In re RACHAEL W., A Person Coming Under the Juvenile Court Law. 2d Juv. No. B245040 (Super. Ct. No. JV45420) ( San Luis Obis p o Count y)

SAN LUIS OBISPO DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent,

v. B. W., Defendant and Appellant.

B. W. appeals from an order termina ting his parental rights to Rachael W. and freeing Rachael for adoption. (Welf. & Inst. Code, § 366.26.) 1 Appellant claims that the trial court failed to comply with the In dian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) and asserts that the parent-c hild/sibling relationshi p exception precludes Rachael's adoption. (§§ 366.26, su bd. (c)(1)(B)(i) &(v).) We affirm. Facts and Procedural History In March 2010, police found Rachael a nd her brothers living in a car with their father, appellant. Rachael's youngest brother, Daniel, was unconscious, had open sores (scabies and eczema), and was transported to the hospital for tr eatment. Rachael

1 All statutory references are to the Welfare and Institutions Code unless otherwise stated.2 told authorities that the fam ily spent nights outside a Food 4Less store and used the store

bathroom. On March 23, 2010, San Luis Ob ispo County Department of Social Services, Child Welfare Services (CWS) file d a dependency petition fo r failure to protect Rachael (age 8) and her brothers Ryan (age 10 ), Robert (age 7), and Daniel (age 6). (§ 300, subds. (b) & (j).) The petition referred to a prior dependency proceeding in which appellant failed to protect the children from an uncle. The petition stated that the biological mother's parental rights were term inated in a Los Angele s County dependency proceeding with respect to Rachael's half-sis ter. Appellant assumed custody of Rachael and the boys in 2007 after mother abandoned them. Appellant submitted on jurisdiction and disposition on Ma y 26, 2010. The boys were placed in a Paso Robles foster hom e and Rachael was placed in another home. Rachael was struggling in school and receiv ed counseling for behavioral and emotional problems. CWS reported that appellant had difficulty meeting his own basic needs and lacked the ability to provide for the children. At the 12 month review hearing (M arch 16, 2011), appellant was still living in his car and had a new girlfriend wh o had given birth to his child. Appellant said that he and the girlfrie nd "are going to get a place for the boys and she will be their

mom." Rachael feared she would be homele ss again if she reunite d with appellant. At the 18 month review hearing, the trial court continued services so that appellant could move to a larger home. A ppellant was unemployed and lived in a small motel room with bunk beds for the boys. A ppellant's girlfriend (Lila M.) was pregnant

with his second child but not authorized to care for Rachael or the boys due to a prior child welfare history. At the 24 month review hearing, CWS recommended that services be terminated. Appellant had qu it working and was living in a motel room with the boys and some dogs. A Court Appointed Special Advocate (CASA) reported that the boys were going to school dirty a nd smelled of urine from bed wetting. Rachael complained about her visits. Appellant's motel room was filthy, there was feces smeared on the3 bathroom walls and toilet, and Rachael saw ap pellant show pictures of topless women to the boys. The CASA worker repo rted that "[a]fter 24 months in the current Dependency case and 8 placements, Rachael is ready for something better than waiting; waiting for a mother who has abandoned her . . . ; waiting for her father to do the few things that the DSS says he must do to get her back; [and] waiting for a secure, permanent placement with someone who can understand her." Rachael loved her brothers but was sure that appellant could not meet her needs or provide a safe home. Appellant planned to move to the paternal grandmother's house which was a concern. The grandmother disliked Rachael and blamed her for the dependency proceeding. An uncle planned to live in the house despite unresolved reports about the uncle's past

behavior with children. Rachael feared the uncle and was sure appellant would be homeless again.

The trial court terminated services as to Rachael and dismissed the petitions with respect to Rachael's brothers who we re living with appellant and the uncle at grandmother's house. At the 366.26 hearing, it was uncontrove rted that Rachael wanted to be adopted. The social worker repor ted that Rachael is a "bright, positive, communicative, and respectful girl who wants de sperately to have a 'normal' life and to be adopted." The trial court found that R achael was adoptable and concluded that the parent-child/sibling relationship exceptio ns did not preclude adoption.

ICWA Appellant argues that CWS failed to gi ve proper ICWA notice. (§ 224.3, subd. (d); In re Alice M. (2008) 161 Cal.App.4th 1189, 1200-1201.) Before the detention hearing, appellant said the child ren may be members of the “Blackfoot” or

Cherokee tribe because his d eceased father and grandfather were members of the

Cherokee tribe. 2

2 Appellant signed an ICWA-020 form stating, u nder penalty of perjur y, that his Indian ancestry was with the "Blackfoot" tribe. Th is was at odds with a 2006 dependency case in which appellant stated that he did no t have Native American Heritage.4 Based on the information provided , CWS served an ICWA-030 notice on the Blackfeet tribe, three Cherok ee tribes, and the U.S. Depart ment of Interior, Bureau of

Indian Affairs. Each tribe responded in writing that the children were not members or eligible to be a members of the tribe. 3 Alleged deficiencies in an ICWA notice are harmless where, as here, the tribe receives no tice and determines that the child is not registered or eligible to register as a member of the tribe. ( In re E.W. (2009) 170 Cal.App.4th 396, 402-403.) Appellant complains that CWS did not ask extended family members about Rachael's Indian heritage but there was no prejudice. (See e.g., In re I.W. (2009) 180 Cal.App.4th 1517, 1531-1532.) Our c ourts have recognized that technical compliance with the IC WA notice requirements may not be required where there has been substantial compliance. ( Id. , at p. 1531.) " 'Parents unable to reunite with their children have already caused th e children serious harm; the ru les do not permit them to cause additional unwarranted delay and hardsh ip, without any showing whatsoever that the interest protected by th e ICWA are implicated in any way.' [Citation.]" ( Id. , at p. 1532.) The jurisdiction/disposition minute or der states that “"County Counsel makes an offer of proof as to ICWA, counse l stipulate to accept offer of proof and the Court signs ICWA orders on the record." Ap pellant did not object when the trial court found that CWS had complied with the ICWA notice requirements. Nor did appellant object to an April 2010 letter fro m the Bureau of Indian Affa irs that "county already has provided an appropriate notice to the tribe or tribes." Appellant claims that CWS has an ongoing duty to inquire but "ICWA does not require further inquiry based on mere supposition. [Citation.]" ( In re K.M. (2009) 172 Cal.App.4th 115, 119.) Appellant's concerns about the scope of the ICWA

3 Written responses were receiv ed from the Cherokee Nation, the Blackfeet Tribe, the Eastern Band of Cherokee Indians, a nd the United Keetoowa h Band of Cherokee Indians.5 investigation is moot given that each tribe ha s determined that Rachael is not an Indian child or eligible to be a tribe member. (§ 224.3, subd. (e)(1); In re William K. (2008) 161 Cal.App.4th 1, 12.) " 'A tribe's determinati on that the child is or is not a member or eligible for membership in the tribe is conclusive.' [Citation.]" ( Alicia B. Superior Court (2004) 116 Cal.App.4th 856, 865. ) Beneficial Relatio nship Exception Appellant argues that the parent-child/sibling relationship exception precludes Rachael's adoption. (§ 366.26, subd. (c)(1)(B)(i) & (v).) In determining whether the exception applies, the trial "cour t balances the strength and quality of the natural parent/child relationship in a tenuous placement against the s ecurity and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a su bstantial, positive emotional atta chment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents are not terminated. ( In re Autumn H. (1994) 27 Cal.App.4th 567, 575.) The sibling relationship exceptio n is more limited and " 'focuses exclusively on the benefits and burdens to th e adoptive child [i.e., Ra chael], not the other siblings.' " ( In re Celine R. (2003) 31 Cal.4th 45, 54.) "R eflecting the Legislature's preference for adoption when possible, the 's ibling relationship exception contains strong language creating a heavy burde n for the party opposing adoptio n. It only applies when the juvenile court determines that there is a "compelling reason" for concluding that the termination of parental rights would be "det rimental" to the child due to "substantial interference" with a sibling re lationship.' [Citation.]" ( Id. , at p. 61.)

Rachael has lived in foster homes mo re than three years and wants to be adopted. Rachael told the CA SA worker it would be "no big deal" if she did not see appellant and said that she would like occas ional visits but "not something set up every month." Stacy Willis, an expert in adoptio ns, testified that a doption would provide Rachael the stability and permanen cy that she so badly needs. Rachael's therapist agreed that adoption would benefit Rachael even if vi sitations were less. Rachael wants to be6 adopted by her prospective ad optive mother who is comm itted to providing a loving home and is open to family visits if it is in Rachael's best interests. The trial court reasonably concluded th at the benefits of adoption outweigh the benefit of maintaining a sibling relations hip with her brothers or a parent/child relationship with appellant. "A biological parent who has failed to reunify with an adoptable child may not dera il an adoption merely by show ing the child would derive

some benefit from continuing a relationship mainta ined during periods of visitation with the parent [or sibling]." ( In re Angel B. (2002) 97 Cal.App.4th 454, 466.) The judgment is affirmed

NOT TO BE PUBLISHED.

YEGAN, J. We concur:

GILBERT, P.J.

PERREN, J.7 Linda D. Hurst, Judge

Superior Court County of San Luis Obispo

________________ ______________

John L. Dodd, under appointment by th e Court of Appeal, for Appellant.

Rita L. Neal, County Co unsel, County of San Luis Obispo and Leslie H. Kraut, Deputy County Counsel, for Respondent.