Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD220279, JD224617
BLEASE, J.
M.C. (mother) appeals from the juvenile court’s orders terminating her parental rights as to minors A.C. and J.C. and ordering a permanent plan of adoption. Mother contends: (1) there is no substantial evidence the minors are adoptable, (2) the notice given under the Indian Child Welfare Act (ICWA; 25 U.S. § 1901 et seq.) was inadequate as to A.C. We shall reverse and remand for further proceedings under ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
This case is now in its third round. The first dependency proceeding, which involved only A.C. (a female born in 2002), began in March 2004 and ended in March 2005 with A.C.’s return to mother and the termination of jurisdiction. The second proceeding, which included both A.C. and J.C. (a male born in 2004 after the first proceeding began), lasted from July 2006 to July 2008, when the juvenile court terminated jurisdiction with the minors in mother’s custody. The third proceeding, in which the court made the orders mother now appeals from, began in December 2009. Because most of this history is irrelevant to the issues on appeal, we focus on the third proceeding. (The facts pertaining to ICWA are set out in part II of the Discussion.)
In the first two proceedings, Sacramento County Department of Health and Human Services (the Department) alleged that mother had abused methamphetamine and had failed to provide the minor or minors with safe, stable housing.
In the present proceeding, the Department’s original Welfare and Institutions Code section 300 petitions, filed December 22, 2009, alleged that mother had returned to substance abuse, had engaged in domestic violence with her current boyfriend, and had apparently attempted suicide. On March 29, 2010, the Department filed amended petitions additionally alleging that mother had gone through two prior dependency proceedings, had a history of drug-related convictions, and had tested positive for controlled substances since the original petitions were filed.
Undesignated section references are to the Welfare and Institutions Code.
The Department recommended that the juvenile court deny reunification services to mother under section 361.5, subdivision (b)(13) (“§ 361.5(b)(13)”) (extensive, abusive, and chronic use of drugs, resistance to court-ordered treatment during a three-year period immediately prior to filing of current petition, and failure or refusal to comply with a substance abuse treatment program at least twice before). The Department also recommended denying reunification services to A.C.’s alleged father, J.D., who was incarcerated and had not maintained contact with A.C. or financially provided for her.
The Department recommended that S.J., the presumed father of J.C., receive reunification services. However, at the subsequent contested jurisdiction/disposition hearing, S.J. waived services.
At a contested jurisdiction/disposition hearing on May 6, 2010, the juvenile court sustained the amended petitions. The court ordered J.C. removed from parental custody, accepted presumed father S.J.’s waiver of reunification services, denied reunification services to mother as to J.C. under section 361.5(b)(13), and set a section 366.26 hearing for August 30, 2010. The court continued the disposition as to A.C. for ICWA notice because alleged father J.D. claimed Indian ancestry.
As we explain in part II of the Discussion, J.D. had claimed Indian ancestry in the second proceeding, but gave much more specific information this time.
On June 10, 2010, at the disposition hearing for A.C., the juvenile court denied reunification services to J.D. under section 361.5, subdivision (a), and to mother under section 361.5(b)(13). The court set a section 366.26 hearing as to A.C. for October 4, 2010.
On June 14, 2010, the Department informed the juvenile court that the home of the paternal aunt and uncle was approved for placement, and the court ordered the minors placed there.
The section 366.26 report, filed October 1, 2010, stated that mother had recently missed several visits with the minors and had been hard to reach to arrange visitation.
The paternal aunt and uncle, who had two biological children of their own in the home, had ensured that the minors’ needs were being met. They wished to adopt the minors, who wished to be adopted by them. The minors had a good relationship with each other, were on target developmentally, and were doing well in school. J.C. sometimes fought with the other children in the home over toys and got “overly excited” about things, while A.C. was “sensitive and clingy” and sometimes argued and competed with the other female child in the home; both would hug anyone they met, and needed to learn about personal boundaries. However, the paternal aunt and uncle felt the minors’ behavior was normal and saw no grounds for concern. A.C. had weekly individual counseling to decrease her anxiety and “intrusive behaviors”; she enjoyed it and wanted to continue. J.C. did not receive counseling, but would be referred for counseling if it became necessary in the future.
The paternal aunt and uncle were aware of the commitment required by adoption. They had an extended support network of friends and family. They had recently been referred to begin the home study process.
Due to “their age [sic] and their mental/emotional needs, ” the minors were specifically adoptable by their present caretakers. It would be in the minors’ best interests to terminate parental rights and allow permanency through adoption.
At the contested section 366.26 hearing on October 21, 2010, mother testified that her weekly visitation went well; the minors were sad at the end and asked when they would get to come home. She had missed a couple of visits in the past few months due to circumstances beyond her control. She did not think her parental rights should be terminated because she and the minors had a strong bond. The reports that accused her of failing to care for her children and abusing substances were false.
Mother’s counsel opposed termination of parental rights, asserting that the beneficial parental relationship exception to adoption applied.
The juvenile court found that the minors were adoptable and mother’s relationship with them was not sufficiently beneficial to outweigh the minors’ need for permanence through adoption. The court therefore ordered the termination of mother’s parental rights and the commitment of the minors to the Department for adoption by the paternal aunt and uncle.
The court also terminated the parental rights of J.D., who did not appear personally at the hearing. He has not appealed from this order.
DISCUSSION
I
Mother contends there is insufficient evidence the minors were adoptable. We disagree.
A parent may attack the sufficiency of the evidence of adoptability for the first time on appeal. (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561; In re Erik P. (2002) 104 Cal.App.4th 395, 399.)
At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
The juvenile court must determine by the standard of clear and convincing evidence that the minor is adoptable. (§ 366.26, subd. (c)(1).) However, we review the juvenile court’s finding under the substantial evidence standard, giving it the benefit of every reasonable inference and resolving any evidentiary conflicts in favor of affirming. (In re I.I. (2008) 168 Cal.App.4th 857, 869.) That is, we must determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the minor was likely to be adopted within a reasonable time. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.)
Determination of whether a child is likely to be adopted focuses first on the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) If a prospective adoptive parent who already has custody of a child wants to adopt him or her, that is evidence that the child is likely to be adopted by that prospective adoptive parent or some other in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.)
The section 366.26 report showed that the minors were happy in the home of their caretakers, who wished to adopt them and were meeting all of their needs. The minors were on track developmentally and educationally. Although they had behavior problems and A.C. was receiving counseling, none of this was particularly unusual given their ages and histories. The Department considered the caretakers to be suitable adoptive parents and had referred them for a home study. Construed most favorably to the juvenile court’s finding of adoptability, this evidence easily passes the substantial evidence test. (In re Casey D. (1999) 70 Cal.App.4th 38, 53 [juvenile court entitled to rely on social worker’s assessment].)
Citing to the report, mother asserts that it shows A.C. “has not adjusted to her new placement[.]” In fact, on one of the pages mother cites, the report says: “The children have made an excellent adjustment to their new placement and they are thriving.”
It does not matter that the home study had not been completed or that its completion date was uncertain. “[W]here there is no evidence of any specific legal impediments to completing the adoption process, parental rights may be terminated to a specifically adoptable child regardless of whether a home study has been completed.” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1410.) And the record does not suggest any obstacles to completing the home study in a routine manner or any reason to think the outcome will not be positive. (Id. at p. 1411.)
Mother asserts that, rather than “prematurely” terminating her parental rights, it would have done “no harm” for the juvenile court to continue the matter for six months “to see if this placement would work out.” This contention is forfeited because mother did not request such relief below. (In re S.B. (2004) 32 Cal.4th 1287, 1293; In re Dakota S. (2000) 85 Cal.App.4th 494, 502.) In any event, mother ignores a basic premise of juvenile dependency law: if children are adoptable, they are entitled to the permanence and stability of adoption as soon as reasonably possible. (See, e.g., In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348-1350.) Delaying that resolution on the mere speculation that a given placement might not “work out” is unacceptable.
II
Mother contends the juvenile court’s order terminating her parental rights must be reversed as to A.C. because proper notice under ICWA was not provided. According to mother, the original notice contained mistakes and omissions; when these were discovered and new notice was sent, the Department failed to renotice some tribes and did not send “fully corrected” notice to others; and the juvenile court erred by failing to order corrected renotice to all the tribes. The Department raises a battery of procedural objections to mother’s contention, and also asserts that there was substantial compliance with ICWA. We conclude the matter must be remanded for new notice to the tribes.
Mother does not raise any ICWA contention as to J.C., whose presumed father S.J. denied Indian ancestry.
Background
The earlier proceedings
In the first proceeding (2004-2005), ICWA was found inapplicable as to A.C. because mother denied Indian ancestry and no presumed father was known.
In the second proceeding (2006-2007), the jurisdiction/disposition report stated that ICWA might apply as to A.C. because J.D., the alleged father, claimed Cherokee heritage through the paternal grandfather; however, he could not give contact information for other paternal relatives.
At the jurisdiction/disposition hearing, the juvenile court directed ICWA notice, and J.D. was given ICWA forms to fill out. The Department later reported that paternity testing indicated J.D. was probably A.C.’s biological father.
Subsequently, the Department declared that it had sent ICWA notice to the Cherokee tribes, naming only the paternal grandfather and the paternal great-grandmother (whom it had tried unsuccessfully to contact). It could not obtain further information, partly because J.D. was incarcerated.
The Cherokee tribes responded that, based on the information provided, A.C. was not an Indian child. The juvenile court found ICWA did not apply.
The present proceeding
When the third proceeding began, J.D.’s whereabouts were unknown. However, he was located thereafter at Deuel Vocational Institute.
J.D. appeared at the contested jurisdiction/disposition hearing on May 6, 2010. He now claimed Cherokee heritage through the paternal grandfather, whom he identified as Vernon Dale Davis, and the paternal great-grandmother, whom he identified as Hazel Davis. According to J.D., Vernon Dale Davis was born in Flora, Illinois, and died in 2007 in Sacramento; his last known address was in Orangevale. Hazel Davis was possibly enrolled in a tribe, but if not, J.D. was sure that the paternal great-grandmother was.
Noting that J.D. had given significant new information, the juvenile court ordered him to complete a new ICWA questionnaire and set an ICWA compliance hearing on June 7, 2010.
J.D.’s ICWA questionnaire claimed “Cherokee and/or Apache” ancestry. (Italics added.) It alleged that the paternal great great-grandmother lived on a reservation or rancheria, but did not give a name or location. It did not provide contact information for relatives.
The Department’s first declaration on ICWA notice, filed May 18, 2010, stated that the paralegal had been unable to contact J.D. because he was incarcerated. Nevertheless, notice had been sent to all federally recognized Cherokee and Apache tribes.
The list of noticed tribes includes the Cherokee Nation of Oklahoma (Cherokee Nation), the Eastern Band of Cherokee Indians (Eastern Band), the United Keetoowah Band of Cherokee Indians (United Keetoowah Band), the Apache Tribe of Oklahoma, the Fort Sill Apache Tribe of Oklahoma, the Jicarilla Apache Nation, the Tonto Apache Tribe, the Mescalero Apache Tribe, the Yavapai-Apache Nation, the San Carlos Apache Tribe, and the White Mountain Apache Tribe.
The 030 form sent to the tribes identified the paternal grandmother as Sylvia Hammon and the paternal grandfather as Vernon Dale Davis. Vernon Dale Davis’s birthplace was given as Flora, Illinois, and his possible tribal membership as “Cherokee and/or Apache, ” but no other information about him was included (though J.D. had given more than that at the jurisdiction/disposition hearing).
On an attached family tree, Mr. Davis was shown as only “Cherokee.” The same family tree showed the paternal great-grandmother, “Hazel Davis (Tate), ” said to be “Cherokee and/or Apache”, possibly born in Illinois, and deceased in Sacramento “sometime in the 1990s.”
A declaration of ICWA receipt and correspondence filed June 3, 2010 stated that two Apache tribes had responded that A.C. was not an Indian child based on the information provided, but one of those had said it needed additional information. Most of the tribes had not yet responded.
At the ICWA compliance hearing on June 7, 2010, after J.D. and his counsel reviewed the notice sent, counsel stated that the information given the tribes was what J.D. had provided. The juvenile court continued the matter because the 60-day notice period had not yet run. (§ 224.2, subd. (e)(3).)
In a worksheet attached to a declaration on receipt of ICWA correspondence filed June 9, 2010, the Department stated that two more Apache tribes had responded negatively, while the Cherokee tribes and four Apache tribes had not yet responded.
In a declaration on ICWA correspondence “and response to request for additional information” filed July 13, 2010, the Department stated: The Cherokee Nation had requested more information as to “Hazel Tate-Davis.” J.D. told the paralegal that Hazel Davis was J.D.’s paternal grandmother (i.e., A.C.’s paternal great-grandmother), her maiden name was Stoops (not Tate), and she was born in 1913. The Department provided this information to the Cherokee Nation by letter dated July 13, 2010.
An ICWA worksheet filed July 16, 2010, showed that the Cherokee Nation’s response was “pending” and the three Apache tribes had not yet responded.
At the ICWA compliance hearing on July 19, 2010, the juvenile court continued the matter for 30 days for further response to the new information. The court also directed the Department to renotice the other Cherokee tribes to give them this information. However, the court did not direct the Department to renotice the Apache tribes, and the record does not show that the Department did so on its own.
A declaration on ICWA return receipt and correspondence and attached worksheet, filed August 12, 2010, showed that the Cherokee Nation had responded negatively based on the new information and the other two Cherokee tribes had not responded.
On August 16, 2010, the juvenile court continued the ICWA compliance hearing to September 27, 2010.
A declaration on ICWA correspondence filed September 22, 2010, stated that the remaining Cherokee tribes (the Eastern Band and the United Keetoowah Band) had now responded negatively to the renotice.
On September 27, 2010, the juvenile court determined that ICWA did not apply.
Analysis
The purpose of the ICWA notice provisions is to enable the tribe or the Bureau of Indian Affairs (BIA) to investigate and determine whether the children are Indian children. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) To that end, once the juvenile court has received information that gives reason to believe a child is an Indian child, notice under ICWA must be given. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) Notice requirements are construed strictly. (Ibid.)
Notice must include all of the following information, if known: the child’s name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child’s parents, grandparents, great-grandparents, and other identifying information, and a copy of the dependency petition. (§ 224.2, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.)
Because ICWA is mainly intended to protect and preserve the interests of the tribes, a parent’s failure to raise a claim of ICWA notice violation in the juvenile court does not forfeit the issue on appeal. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1; In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739.)
Where tribes have received ICWA notice, any error as to that notice is subject to harmless error review. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 784.)
Mother asserts that the following errors occurred, which collectively cannot be harmless: (1) The original ICWA notice failed to provide all the information about J.D.’s family that he had already given in open court or on his ICWA questionnaire, and misstated some of the information it gave, (2) when the Department obtained additional information, it did not send an amended 030 form to the tribes, and (3) the Department did not send even a corrective letter to the Apache tribes. We need not decide whether all of these points have merit, because the last point is enough to compel reversal.
The Apache tribes returned their negative responses based only on the original information given them, which J.D. later materially corrected and augmented. Since no evidence rebuts J.D.’s claim that he might have Apache ancestry, the Department should have given the Apache tribes the latest and fullest information it had. Under these circumstances, merely to renotice the Cherokee tribes was insufficient. The matter must be remanded for new and corrected notice to all tribes.
To forestall this conclusion, the Department asserts that mother’s claim is procedurally barred. The Department is mistaken.
The Department asserts that this court lacks jurisdiction to review mother’s ICWA claims, because (1) “[t]he juvenile court’s prior ICWA findings from A.C.’s two previous dependency cases are res judicata”; (2) “[t]he juvenile court in the pending dependency case did not have jurisdiction to set aside the prior ICWA findings”; (3) “[t]he normal rules of appellate review are not preempted by the ICWA”; (4) “[a] continuing duty of inquiry does not give the juvenile court ongoing jurisdiction to reconsider a final ICWA finding from a prior dependency case”; (5) “[e]ven if the juvenile court has jurisdiction because of its continuing duty of inquiry, a new duty to notice is not triggered merely because a parent, without more, names a new tribe”; (6) “[a]ssuming the doctrine of res judicata does not bar appellant’s ICWA claim, this court should not treat her appeal as a petition to invalidate”; and (7) “[f]ailure to apply res judicata in the present case would contravene the goal of the dependency scheme.” The Department also asserts: “Because of the extenuating circumstances in this case, this court should find that appellant forfeited her ICWA claims by failing to raise her objections at the series of ICWA compliance hearings below.” We are not persuaded.
Throughout this long string of arguments, the Department fails to make clear what it means by “jurisdiction.” Lack of jurisdiction in the fundamental sense--the only sense that would bar a court from deciding an issue--means lack of jurisdiction over the parties or the subject matter affected by the court’s ruling. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288.) We take the Department to mean that the juvenile court in the current proceeding lacked jurisdiction over the subject matter at issue.
As mother points out, the Department never contended in the juvenile court that any jurisdictional bar prevented the court from reconsidering the ICWA issue in the current proceeding based on newly presented evidence. A party may not change its theory of the case on appeal. (Brown v. Boren (1999) 74 Cal.App.4th 1303, 1316.) Furthermore, the Department fails to cite any apposite authority to support its jurisdictional arguments, which is a sufficient ground to reject them. (People v. Turner (1994) 8 Cal.4th 137, 214, fn. 19; In re S.C. (2006) 138 Cal.App.4th 396, 408.)
Moreover, the Department’s res judicata claim leads to absurd results. The Department asserts that because no appeals were filed in the prior proceedings, where the juvenile court ruled ICWA inapplicable, those rulings are now final and the court lacked jurisdiction to reconsider them. This argument, if correct, would also bar the court from reconsidering any other issue decided in the prior proceedings. But it is self-evident that when the juvenile court reassumes jurisdiction after dismissing it, the court is and must be free to consider every issue raised in the new proceeding, based on the evidence now before the court. (See In re C.C. (2009) 172 Cal.App.4th 1481, 1488 [issue not moot after order terminating juvenile jurisdiction if “‘purported error infects the outcome of subsequent proceedings’”]; In re Nickolas F. v. Superior Court (2006) 144 Cal.App.4th 92, 110-117 [juvenile court has statutory and constitutional authority to change, modify, or set aside its prior orders on its own motion].)
Of course, mother had no grounds or motive for appeal in the prior proceedings, which terminated entirely in her favor.
This rule applies with particular force to ICWA notice issues, for reasons that go to the core of ICWA. First--and regardless of any alleged “extenuating circumstances” arising from a parent’s dilatory conduct or the drawn-out history of the case--ICWA notice issues cannot be forfeited on appeal by a parent’s failure to raise them in the juvenile court, because it is the tribes’ interest, not the parent’s interest, that is at stake. (In re J.T., supra, 154 Cal.App.4th at p. 991; Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 783, fn. 1; In re Marinna J., supra, 90 Cal.App.4th at pp. 738-739.) Second, as the Department concedes, ICWA imposes on the juvenile court “a continuing duty... to inquire whether a child might be an Indian child.” (In re Jonah D. (2010) 189 Cal.App.4th 118, 123.) The Department’s bald assertion that these considerations do not apply to “subsequent proceedings” fails for lack of supporting authority or logic. (People v. Turner, supra, 19 Cal.4th at p. 214, fn. 19; In re S.C., supra, 138 Cal.App.4th at p. 408.)
So far as the Department asserts that “the goal of the dependency scheme” requires applying res judicata to the juvenile court’s prior ICWA findings, the Department fails to recognize that under ICWA and its California implementing legislation, the proper resolution of ICWA claims is a central “goal of the dependency scheme.”
Thus, the Department’s procedural arguments fail. Its claims on the merits--substantial compliance with ICWA notice requirements and harmless error--are no more persuasive.
Substantial compliance with the requirements of a statutory scheme means actual compliance as to the substance essential to achieve the statutes’ objectives. (People v. Hoag (2000) 83 Cal.App.4th 1198, 1208.) Because the Apache tribes did not receive the corrected renotice given to the Cherokee tribes, which might have enabled them to find that A.C. was an Apache child, the juvenile court and the Department did not comply with the substance of ICWA so as to achieve its objectives. For the same reason, we cannot find the error harmless.
For all the above reasons, we must vacate the orders terminating parental rights and directing a permanent plan of adoption as to A.C. only, and remand for limited further proceedings as to her. On remand, the juvenile court shall direct the Department to renotice the Apache tribes, providing the same information that was given on renotice to the Cherokee tribes. If the court thereafter determines that A.C. is not an Indian child, the court shall reinstate its orders terminating parental rights and directing a permanent plan of adoption as to her. If the court determines that A.C. is an Indian child, the court shall proceed in accordance with ICWA.
DISPOSITION
As to J.C., the orders terminating parental rights and ordering a permanent plan of adoption are affirmed. As to A.C., those orders are vacated and the matter is remanded for further proceedings as directed in part II of the Discussion.
If there is no response or if the court determines that the child is not an Indian child, the orders shall be reinstated.
We concur: RAYE, P. J., HOCH, J.