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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

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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 

Under the Juvenile Court Law.

 B251987

 (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. 

_____________________
2

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-brothers2from 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 

 

1 All 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, oneyear-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].)3If 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 
8

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 
10

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.
12

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.