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Name: In re S.M.
Case #: D042955
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 05/21/2004

In June, 2002, a judgment terminating father’s parental rights was reversed because father had not received adequate notice of the jurisdictional and dispositional hearings. The appellate court did not address father’s ICWA notice issue, but directed the court upon remand to give proper ICWA notice. Following remand, father gave additional evidence about the maternal great-grandmother, who may have been registered Cherokee. Notices were sent to several tribes, but the Cherokee National of Oklahoma requested more information about family members. None was sent. In July, 2003, father filed a 388 modification petition, requesting that the 366.26 hearing be vacated and services reinstated. The next month, the Agency received a letter from the Cherokee Nation stating that since it received no response to its inquiry, it was unable to verify the minor’s Indian heritage. The trial court denied the 388 petition and terminated parental rights. The appellate court here reluctantly reversed and remanded. The ICWA notices were inadequate in that they did not include information which was available about both the paternal grandmother and great-grandmother. Further, the Agency did not respond to the tribe’s request for further information. The trial court did not abuse its discretion when it denied father’s 388 modification petition. The minor did not have a bond with father, but she did have a deep bond with her extended paternal relatives, including her grandmother. The focus at the 366.26 stage is on the child’s interest in permanency. The court properly did not focus on the minor’s relationship with other than her parents. Further, there was no evidence that the minor would be harmed if her relationship with the relatives ended. Further, the court did not err when it failed to order visits between the minor and her half-brother, which limited the ability to argue a sibling exception to adoption. The minor had no pre-existing relationship with this sibling. There is no requirement to provide visitation to create a bond which does not exist. Further, the sibling was not a dependent of the court, and therefore the court had no jurisdiction over him. It therefore could not order visits.