Opinion
NOT TO BE PUBLISHED
Superior Court County of San Luis Obispo No. JV47976, Ginger Garrett, Judge
Janice A. Jenkins, under appointment by the Court of Appeal, for Defendant and Appellant.
Warren R. Jensen, County Counsel and Leslie H. Kraut, Deputy County Counsel, for Plaintiff and Respondent
COFFEE, J.
H.S. (Mother) appeals from the juvenile court's order terminating parental rights as to her son, J.S. (Welf. & Inst. Code, § 366.26.) She challenges the sufficiency of the evidence to support the findings that J.S. is adoptable and that ICWA notice was adequate. The order terminating parental rights is reversed for the limited purpose of complying with the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
BACKGROUND
J.S. was born in November 2007. On February 18, 2009, the Department of Social Services (DSS) filed a dependency petition for failure to protect and support J.S. (§ 300, subds. (b) & (g).) The petition alleged that mother was unable to care for J.S. and the whereabouts of his two alleged fathers were unknown. The petition further alleged that on February 14, 2009, mother was slurring her words, the home had the stench of unclean cat litter, and there were bottles of prescription medication within the reach of J.S. On February 19, 2009, the court ordered that J.S. be removed from mother's custody and placed with the DSS.
The March 24, 2009 Jurisdiction/Disposition Report stated that J.S. would not be safe with mother. She had a long history of substance abuse and had been under the influence when she arrived for some of her visits with J.S. The DSS case plan required mother to enter into a residential treatment program. J.S. was living with his maternal grandfather and his wife. DSS recommended that he remain in out-of-home care and that mother receive six months of reunification services. On March 24, juvenile court sustained the petition; found J.S. to be a dependent child; ordered reunification services for mother; and approved the proposed case plan.
The June 23, 2009 interim review report indicated that J.S. was receiving therapy and seemed happier as his skills progressed. Mother had not visited him consistently; two visits were canceled because she appeared to be under the influence. She had not entered a residential treatment program. Although J.S. would play with mother and sit on her lap, he avoided eye contact with her.
The September 1, 2009 status review report recommended termination of mother's reunification services. DSS had referred her to many services to address her substance dependence. She refused to enter two free residential treatment programs because they would not accept J.S. Another program rejected her because she was under the influence upon her arrival. The October 27, 2009 addendum reported that mother pleaded no contest to child endangerment and other offenses on August 31, 2009. (Pen. Code, § 273a.) She entered a sober-living program on September 1, 2009. It was not a licensed treatment facility and its residents used outside agencies.
On November 16, 2009, the court conducted a contested status review hearing. Although J.S. had learned to make eye contact with other people, he continued to avoid eye contact with mother. Mother did not accept her responsibility for some of J.S.'s special needs. On November 24, 2009, after taking the matter under submission, the court found that the return of J.S. to mother would create a substantial risk of detriment because she failed to participate regularly and make substantive progress in her court-ordered treatment. It terminated her reunification services and set the matter for a section 366.26 hearing. Mother later filed a writ petition with this court challenging the section 366.26 hearing orders, and seeking further reunification services. We denied her petition in an opinion filed on March 25, 2010. (In re H.S. No. B227277 [nonpub. opn.].)
Meanwhile, on February 19, 2010, mother filed a section 388 petition requesting additional reunification services and more frequent visitation. On April 6, 2010, J.S.'s biological father filed a section 388 petition requesting reunification services to provide J.S. the opportunity to experience the "rich tradition and history of his Indians ancestors."
On July 8, 2010, the court conducted a contested proceeding to consider the section 388 petitions and the proposed section 366.26 permanency plan. It received the March 9, 2010 section 366.26 report recommending the termination of parental rights and the identification of adoption as the permanent plan for J.S. That report included the assessment of J.S. by adoptions social worker Lori Hunstad. Hunstad described J.S. as "an adorable 2 year old boy who is adoptable." J.S. entered the system developmentally behind in every way and had since made strides "in every domain while in foster care" to the point where he was "only 3-6 months behind." His remaining needs and challenges included "a very structured, routine environment with parents who will be available and willing to work with (him)"; constant supervision because his high risk behaviors (jumping off furniture or throwing himself on the ground) jeopardized his physical safety; his difficulty regulating his own behavior caused over-stimulation of self-injurious behavior; excessive eating; muscular weakness on his left side; a propensity for extreme temper tantrums that could escalate into aggressive, violent behavior toward people or animals; frustration and anxiety; and attachment issues stemming from the extreme neglect he suffered as an infant while in mother's care. Despite such challenges, J.S. had nearly ceased having nightmares. A doctor who conducted an MRI brain scan in December 2009 concluded that J.S. was "Normal... for age."
Mother's skills interacting with J.S. had improved and her visits became more consistent. They still lacked any parent-child connection.
DSS identified three families as potential adoptive homes for J.S. Each family had completed training on the adoption of children with special needs and was capable of meeting the needs of a child like J.S. He had started having visits with one potential adoptive family.
During the combined section 388/366.26 hearing, mother testified that J.S. had not been neglected during the first 13 months of his life. She acknowledged her failures to perform her obligations while receiving reunification services but claimed that her social workers had not met all of their obligations. She "graduated" from Casa Solana and participated in a Prop. 36 program, but admitted that she had used drugs on April 4, 2010. Mother also presented letters and reports in support of her section 388 petition.
Sandy S., the maternal grandmother, asked to have J.S. placed with her. Dr. Sandra Thomas, a licensed therapist who had been treating Sandy S., testified regarding the progress Sandy S. had made in setting boundaries with mother. She also testified that Sandy S. could be a "safe and adequate parent for [J.S.]" Dr. Thomas conceded that Sandy S. was "still in the process of having ongoing therapy."
DSS adoptions unit supervisor David Platt testified regarding the complications posed by the enmeshed relationship between mother and Sandy S. when she cared for J.S. Among other things, Sandy S. had "a difficult time separating herself from [mother's] needs, " and could have difficulty keeping mother "from coming in the home." Mother interfered with grandmother's ability to provide the necessary structure for J.S. Sandy S. also seemed unable to "understand the gravity of [mother's] past behavior towards" J.S.
Father testified that he was enrolled with the Miami Nation, an Oklahoma tribe. He described his experiences visiting with and learning about his tribe and many other tribes' culture, language and activities.
At the close of the combined section 388/366.26 hearing, the court took the case under submission. On August 11, 2010, it denied the section 388 petitions, found that DSS had complied with ICWA requirements and found that J.S. was adoptable, and terminated mother's and father's parental rights.
DISCUSSION
Adoptability
Mother contends that the juvenile court finding of adoptability is not supported by substantial evidence. We disagree.
We review the court's finding for substantial evidence and must affirm if there is any evidence of adoptability which is reasonable, credible and of solid value. (In re Jasmine C. (1999) 70 Cal.App.4th 71, 75.) Although we bear in mind that the finding must be based on a clear and convincing standard (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654), we may not reweigh the evidence on appeal (In re Casey D. (1999) 70 Cal.App.4th 38, 52).
The issue of adoptability focuses on whether the minor's age, physical condition and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) The identification of an adoptive home permits an inference that it is likely the child will be adopted, but a prospective family is not a prerequisite so long as the evidence supports a finding that the child is likely to be adopted within a reasonable period. (In re Jayson T. (2002) 97 Cal.App.4th 75, 85, overruled on other grounds in In re Zeth S. (2003) 31 Cal.4th 396, 408-409.)
Mother focuses on J.S.'s emotional and behavioral problems while discounting the substantial evidence supporting the adoptability finding. Among other things, she cites his high risk behaviors that jeopardize his safety and require constant supervision; his "temper tantrums... that escalate to aggressive and violent behavior towards other people and animals as well as towards himself"; his "attachment issues" that would require "intensive work" with his permanent family to attach and develop trust; and his "mistrust" that would take "a great deal of time to overcome." She also cites his gross motor skill deficits and muscular weakness on his left side.
Substantial evidence supports the adoptability finding. Even before J.S. received therapy, in spite of his emotional behaviors, he was "usually easy going and adapt[ed] to what [was] happening in the home." Social worker Lori Hunsted noted that J.S. "show[ed] growth in every domain while in foster care"; was "verbal, engaging and... curious"; and "enjoy[ed] playing with other children and [was] learning how to share." Although he had "entered the dependency system developmentally behind in every way, by March 2010, [h]e [had] made significant strides [and was only]... about 3-6 months behind."
Recognizing his special needs, Hunsted concluded that J.S. was adoptable, and indicated that DSS identified three prospective adoptive homes wishing to adopt a child like him. Each of the families had completed training on "fostering/adopting special needs children [and had] been assessed to be capable of meeting the needs of children such as [J.S.]." Their social histories support that assessment.
The identification of a prospective adoptive home "indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parents or by some other family." (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) It is also significant that J.S. remained in one foster care home, with his maternal grandfather and his wife, throughout his dependency and that his maternal grandmother sought to adopt him. Their willingness to provide long-term care for or adopt him supports the finding of adoptability. Despite his many challenges, J.S. progressed emotionally, physically and intellectually. Admittedly, the attachment, trust, anxiety and other issues caused by the extreme neglect J.S. suffered as an infant in mother's care will take "a great deal of time to overcome under the right circumstances." Adoption offers the best opportunity to provide J.S. with the right circumstances.
ICWA Compliance
We agree with mother's contention that there is not substantial evidence to support the finding that ICWA notice was adequate because DSS failed to give adequate notice to the Mescalero Apache Tribe.
At all stages of a dependency proceeding, the juvenile court must comply with the ICWA. The ICWA was enacted to protect the interests of Indian children and to promote the stability and security of Indian tribes and families. (25 U.S.C. § 1902; see, e.g., In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906.) An Indian child, within the meaning of the ICWA, is a child who is either a member of an Indian tribe or is eligible for membership and is the biological child of a member. (25 U.S.C. § 1903(4); § 224.1, subd. (a).) Where a state court "knows or has reason to know" that an Indian child is involved in a dependency proceeding, statutorily prescribed notice must be given to all tribes of which the child may be a member or eligible for membership. (25 U.S.C. § 1912(a); § 224.2, subd. (a)(3); In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) Notice to the tribe "shall be to the tribal chairperson, unless the tribe has designated another agent for service." (§ 224.2, subd. (a)(2).) "The failure to comply with the notice requirements of the ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings." (In re Samuel P., at p. 1265.)
J.S.'s biological paternal grandfather reported that his family had Comanche, Kiowa, Apache, and Miami Nations of Indian heritage. DSS sent notices to multiple Apache tribes and provided certified mail receipts for the tribal chairperson, or the person designated as the agent for service, for most of those tribes. However, it did not provide notice to the designated agent for the Mescalero Apache tribe. The names and addresses of the designated agents for service are published periodically in the Federal Register. The list in effect at the time of the July 27, 2009 notice appears at 74 Federal Register 19326 (April 28, 2009). It then showed that notice for the Mescalero Apache Tribe should have been served on Christina Layton, Executive Director for Tribal Human Services, P.O. Box 228, Mescalero, NM 88340." (Ibid.) The proof of mailing in the record shows that the copy of the notice intended for the Mescalero Apache Tribe was addressed to "Irenis Noseep, Act. Sup. SS Desig. Tribal Chairperson, P.O. Box 189, Mescalero, NM 88340." The record includes a letter it received from The United States Department of the Interior, Bureau of Indian Affairs to DSS which indicated that its office, rather than Ms. Noseep's office, received the notice directed to the Mescalero Apache Tribe. The same letter advised DSS that it would forward the notice to "Ms. Crystal Garcia who serves as the Tribal Census Clerk, " and provided her address: "Crystal Garcia, Census Clerk, Mescalero Apache Tribe, P.O. Box 227, Mescalero, New Mexico 88340." There is nothing in the record to show that Garcia ever received the forwarded letter or any notice.
Moreover, there is no evidence in the record that the Mescalero Tribe's designated tribal agent for service of notice, Christina Layton, ever received proper notice. "The purpose of the requirement that notice be sent to the designated persons is to ensure that notice is received by someone trained and authorized to make the necessary ICWA determinations, including whether the minors are members or eligible for membership and whether the tribe will elect to participate in the proceedings." (In re J.T. (2007) 154 Cal.App.4th 986, 994.) Here, the record does not show that the notice was actually received by anyone responsible for ICWA matters for the Mescalero Apache Tribe.
DISPOSITION
The order terminating parental rights is reversed for the limited purpose of complying with the ICWA. The juvenile court is directed to ensure proper notice is provided to the Mescalero Apache Tribe, and that DSS files all required documentation for the court's inspection. If, after proper notice, the Mescalero Apache Tribe claims that J.S. is an Indian child, the court shall proceed under the provisions of the ICWA. If it does not intervene after such notice, the order terminating parental rights shall be reinstated. In all other respects, the orders and findings of the juvenile court are affirmed.
We concur: EGAN, Acting P.J., PERREN, J.