Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. CK17592. Marilyn Kading Martinez, Juvenile Court Referee.
Kate M. Chandler, under appointment by the Court of Appeal, for Defendant and Appellant.
Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, Aileen Wong, Senior Associate County Counsel, for Plaintiff and Respondent.
PERLUSS, P. J.
Carrie F., the mother of four-year-old L.F., appeals from the juvenile court’s October 22, 2007 order terminating her parental rights under Welfare and Institutions Code section 366.26. Carrie F. argues the court lacked substantial evidence L.F. was likely to be adopted and failed to wait the requisite period of time before finding L.F. was not subject to the provisions of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (ICWA), thus requiring reversal of the termination order. We affirm.
Statutory references are to the Welfare and Institutions Code unless otherwise specified.
FACTUAL AND PROCEDURAL BACKGROUND
L.F., then 17 months old, was taken into custody by the Los Angeles County Department of Children and Family Services (Department) on December 17, 2005, after police responding to an emergency domestic violence call discovered methamphetamine and drug paraphernalia in Carrie F.’s possession, as well as multiple forged driver’s licenses and checks. On December 21, 2005 the Department filed a petition under section 300, subdivisions (a) (serious physical harm), (b) (failure to protect), (g) (no provision for support) and (j) (abuse of sibling), to declare L.F. a dependent child of the juvenile court. At the detention hearing the court ordered L.F. detained and placed in shelter care with reunification services and monitored visitation for her mother, who had been arrested and charged with possession of narcotics, receiving stolen property and forgery.
On December 22, 2005 Carrie F. filed a Parental Notification of Indian Status (Judicial Council Form JV-130) stating she had Cherokee heritage. At a hearing that same day, the juvenile court directed notice be provided to the Cherokee Tribe and the Bureau of Indian Affairs (BIA). Pursuant to the court’s order notice was served on January 17, 2006 advising the recipients of the next scheduled hearing on January 23, 2006. Recognizing the notice was inadequate, the court continued the hearing to February 15, 2006, and the Department mailed a second set of notices to the BIA and relevant tribal administrators on January 24, 2006.
At the February 15, 2006 jurisdiction-disposition hearing the juvenile court sustained the failure-to-protect count of the petition, as amended, which alleged Carrie F. had created a detrimental home environment by possessing methamphetamine, thereby placing L.F. at substantial risk of harm; Carrie F. had a history of substance abuse that periodically rendered her incapable of caring for L.F.; and L.F. had been exposed to extreme domestic confrontations between Carrie F. and her male cohabitant. The court ordered L.F. suitably placed under the supervision of the Department and directed Carrie F. to participate in individual counseling, a parent education program and drug counseling with random drug testing. Carrie F. also signed a mediation agreement in which she agreed to participate in counseling to address issues of substance abuse, illegal activities, child safety and domestic violence. The court granted Carrie F. monitored visitation and continued the matter to June 23, 2006 for the six-month review hearing. (§ 366.21, subd. (e).) In addition, based on the filing of the return receipts from the two sets of ICWA notices, the court declared L.F. not to be subject to the provisions of ICWA. Shortly after the February 15, 2006 jurisdiction-disposition hearing L.F. was placed with a fost-adopt family (that is, foster parents with a goal of adoption by them in the event reunification should prove unsuccessful).
Reports submitted thereafter by the Department routinely indicated ICWA did not apply to this case.
None of the tribal entities ever responded to the ICWA notices served by the Department. Meanwhile, based on Carrie F.’s sporadic compliance with the court’s orders, the Department recommended the court terminate reunification services and set a hearing to select a permanent plan for L.F. In an addendum report filed just before the six-month review hearing, however, the Department changed its recommendation to continued reunification services, advising that the social worker had verified Carrie F.’s attendance in some of her programs and had learned that Carrie F. was receiving support from various relatives. After several continuances the six-month review hearing was conducted on August 28, 2006. At the hearing the court found the Department had provided reasonable reunification services and Carrie F. was in partial compliance with her case plan. The court ordered the Department to continue to provide reunification services and continued the case to February 26, 2007 for the 12-month review hearing. (§ 366.21, subd. (f).)
Although the 12-month review hearing was further postponed, the juvenile court took the fost-adopt family’s request for de facto parent status under submission at the February 26, 2007 hearing and granted it on March 23, 2007.
After a series of further continuances, the contested 12-month review hearing was conducted over six sessions from May 9, 2007 until June 25, 2007, by which date the case had already reached the 18-month statutory limit for reunification (§§ 361.5, subd. (a)(3), 3d par., 366.22). In consecutive reports for the 12-month review hearing the Department summarized Carrie F.’s poor program compliance and recommended the court terminate reunification services. In support of its recommendation the Department advised that in November 2006 Carrie F. had been sentenced to a five-year state prison term following her conviction for possession of narcotics, receiving stolen property and forgery. The report also referred to a recent letter from Carrie F. to the court, indicating she had applied to participate in a prison program allowing incarcerated mothers to be housed with their children in supervised facilities away from the prison setting, the Community Prisoner Mother Program (CPMP). The Department asserted such a placement would not be in L.F.’s best interest, given Carrie F.’s unsatisfactory progress with her case plan and L.F.’s fragile medical condition, as well as L.F.’s dependence on the intensive services she was receiving from therapists and workers assigned to her in her current placement. In a further report for the contested 12-month review hearing, the Department reviewed Carrie F.’s criminal history, which included 13 convictions for drug, forgery and theft offenses dating back to 1995. The Department also reported L.F. had developmental needs that required Regional Center services, and her physician had expressed concern that removing L.F. from her current stable placement would be detrimental to her well-being.
The 18-month maximum period for reunification services is measured from “the date the child was originally removed from physical custody of his or her parent or guardian.” (§ 361.5, subd. (a)(3), 3d par.) L.F. was initially removed from Carrie F.’s physical custody on December 17, 2005. (See Cal. Rules of Court, rule 5.502(18) [“initial removal” means date on which child was taken into custody by social worker or peace officer].)
During much of 2006 L.F. suffered chronic symptoms of cough, congestion, fever and lack of energy originating from a December 2005 bout of pneumonia. Subsequent medical reports indicate her condition has improved.
Following the hearing on June 25, 2007, the juvenile court terminated reunification services and set a selection and implementation hearing pursuant to section 366.26. The court found, although Carrie F. had attended some of her court-ordered programs, her compliance was “marginal” and the evidence established she had not made sufficient progress to resolve the problems that had caused L.F.’s detention. The court found the Department had provided reasonable reunification services, the return of L.F. to Carrie F.’s custody would create a substantial risk of detriment to L.F.’s well-being and there was not a substantial probability L.F. could be returned to Carrie F.’s custody within six months.
Following the ruling terminating her reunification services, Carrie F. filed a writ petition pursuant to section 366.26(l), which we denied on December 17, 2007 in a memorandum opinion on the merits. (See Carrie F. v. Superior Court (Dec. 17, 2007, B200253) [nonpub. opn.].)
In the interim the juvenile court proceeded with the section 366.26 hearing on October 22, 2007. The Department’s section 366.26 report states that, after an initial placement determined to be inadequate for her needs, L.F. had been placed with her current fost-adopt family on February 17, 2006. The Department reported L.F. had bonded strongly with the fost-adopt family, Mark and Ana M. and their then-five-year-old son, who had recently been diagnosed with autism. Although L.F.’s behavior had originally been aggressive and highly emotional, she had showed marked improvement during the following year, regressing only when the court ordered an acceleration of visits with Carrie F. Once those visits were discontinued, L.F.’s disposition markedly improved, both at school and at home.
In addition, the report cited the diligence of L.F.’s fost-adopt parents in securing services for her based on her apparent developmental delays. A comprehensive developmental profile (including speech and language, psychoeducational and physical assessments) diagnosed receptive and expressive language disorders that severely impaired L.F.’s ability to communicate. In other diagnostic categories she tested at a more age-appropriate level. In anticipation of her entry into public school, her fost-adopt parents had already secured an individualized educational program (IEP) for L.F. through the local school district to assist her transition from pre-school. An adoptions social worker who prepared a home study for L.F.’s fost-adopt family described Mark and Ana M. as “skilled parents” and “strong advocates” for L.F. and their son and stated, “[L.F.] has responded well to the family and reciprocates the attachment to them.”
At the October 22, 2007 hearing the juvenile court found by clear and convincing evidence L.F. was likely to be adopted. Referring to L.F.’s special needs, the court stated, “She’s been receiving speech therapy, and she has an individualized education plan to assist her to have her early needs met. These needs are not a barrier to her becoming adopted. And, nonetheless, her caretakers are well aware of her needs and are meeting her needs on a regular, daily basis.” The court then terminated Carrie F.’s parental rights.
CONTENTIONS
Carrie F. contends the juvenile court’s finding of adoptability is not supported by substantial evidence. In addition, she contends the court’s failure to wait 60 days before declaring L.F. not subject to ICWA requires reversal of the termination order.
DISCUSSION
1. Substantial Evidence Supports the Juvenile Court’s Finding L.F. Is Adoptable
Section 366.26 directs the juvenile court in selecting and implementing a permanent placement plan for a dependent child. The express purpose of a section 366.26 hearing is “to provide stable, permanent homes” for dependent children. (§ 366.26, subd. (b).) If the court has decided to end parent-child reunification services, the legislative preference is for adoption. (§ 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53 [“if the child is adoptable . . . adoption is the norm. Indeed, the court must order adoption and its necessary consequence, termination of parental rights, unless one of the specified circumstances provides a compelling reason for finding that termination of parental rights would be detrimental to the child”]; In re Matthew C. (1993) 6 Cal.4th 386, 392 [when child adoptable and declining to apply one of the statutory exceptions would not cause detriment to the child, the decision to terminate parental rights is relatively automatic]; see In re Marilyn H. (1993) 5 Cal.4th 295, 307 [once reunification efforts have been found unsuccessful, the state has a “compelling” interest in “providing stable, permanent homes for children who have been removed from parental custody”; and the court then must “concentrate its efforts . . . on the child’s placement and well-being, rather than on a parent’s challenge to a custody order”].)
A juvenile court may terminate parental rights under section 366.26, however, only if it determines by clear and convincing evidence the child will likely be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Asia L. (2003) 107 Cal.App.4th 498, 509; In re Jerome D. (2000) 84 Cal.App.4th 1200, 1204.) “‘“‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.”’” (Jerome D., at p. 1206.) Review of the juvenile court’s finding of adoptability is limited to determining whether it is supported by substantial evidence. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) We give the court’s adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the juvenile court’s ruling. (In re Y.R. (2007) 152 Cal.App.4th 99, 112.)
“The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, 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.’” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; see § 366.26, subd. (c)(1).) Nevertheless, “the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, 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.” (In re Sarah M., at pp. 1649-1650; see In re Asia L., supra, 107 Cal.App.4th at p. 510.)
We start from the premise L.F. has resided with her current foster family for more than two years, having first been placed with them in February 2006. This family, as demonstrated by the comprehensive reports prepared during the course of L.F.’s dependency, has, at every turn, not only met her basic needs but also anticipated and addressed the specific challenges associated with parenting a special needs child. By every account, L.F. is making sustained progress in overcoming her current language and social deficits. We see no error by the court in relying upon this evidence to conclude L.F. is likely to be adopted within a reasonable time by this family or by some other family.
Carrie F. does not attack the juvenile court’s finding on the ground some legal impediment bars adoption by L.F.’s current fost-adopt family. (See, e.g., In re Sarah M., supra, 22 Cal.App.4th at p. 1650 [“[w]here the social worker opines that the minor is likely to be adopted based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any legal impediment to adoption by that parent”].) Instead, she argues the court failed to consider the impact of a possible oral motor disorder (such as apraxia) on L.F.’s adoptability. She contends the court should have first required the Department to obtain additional evaluations sufficient to rule out such risks, which might jeopardize the likelihood of L.F. finding an adoptive family.
The risk identified by Carrie F., however, is not only speculative but also indistinguishable from the risks associated with adopting (or, indeed, birthing or parenting) any child. Carrie F. points to no evidence suggesting the assessments performed on L.F. were less than competent or incomplete. To the contrary, L.F. has been comprehensively evaluated and found to have a moderate-to-severe range of language deficits, none of which has deterred her fost-adopt family from pursuing the adoption. Although the report acknowledged an oral motor disorder such as apraxia could not be ruled out or confirmed absent a course of diagnostic therapy, we are reluctant to conclude a statement alluding to an unquantifiable risk must be resolved before a child may be determined to be adoptable. Section 366.26, subdivision (c)(1), does not require certainty; it requires only unbiased and reasonable consideration of documented facts. Although there are children who “ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability” (In re Sarah M., supra, 22 Cal.App.4th at p. 1650), L.F. is not one of them. Like the child in In re Sarah M., L.F.’s adoptability stems not solely from the commitment of this particular prospective family but also from her young age and positive response to therapeutic intervention and competent parenting. (See In re Sarah M., at p. 1651.) Not surprisingly, the adoptive family here has elected to pursue the adoption notwithstanding the unresolved risks associated with a child with L.F.’s history. They have not required a crystal ball; nor will we.
2. The Juvenile Court’s Error in Failing To Comply with State-imposed ICWA Notice Requirements Was Harmless
The purpose of ICWA is to “‘protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.’” (In re Karla C. (2003) 113 Cal.App.4th 166, 173-174, quoting 25 U.S.C. § 1902; see also In re Suzanna L. (2002) 104 Cal.App.4th 223, 229; In re Santos Y. (2001) 92 Cal.App.4th 1274, 1299.) “ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) For purposes of ICWA, an “Indian child” is a child who is either a member of an Indian tribe or is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. § 1903(4).)
When a court “knows or has reason to know that an Indian child is involved” in a juvenile dependency proceeding, the court must give the child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157.) “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies.” (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.)
At the time the Department commenced proceedings concerning L.F., former rule 1439 of the California Rules of Court governed state ICWA proceedings and imposed on both the juvenile court and the Department “an affirmative and continuing duty to inquire whether a [dependent] child . . . is or may be an Indian child.” (Former rule 1439(d).) Former rule 1439(f)(5) required notice “be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that [ICWA] does not apply to the case,” and former rule 1439(f)(6) provided, “If, after a reasonable time following the sending of notice under this rule -- but in no event less than 60 days -- no determinative response to the notice is received, the court may determine that [ICWA] does not apply to the case unless further evidence of the applicability of [ICWA] is later received.”
All further rule references are to the California Rules of Court.
Effective January 1, 2007, the California Rules of Court were renumbered; and rule 1439 became rule 5.664. Effective January 1, 2008, former rule 5.664 was repealed and replaced, in part, with current rule 5.481. The current rule, like its predecessors, imposes on the court and the Department “an affirmative and continuing duty to inquire whether a child is or may be an Indian child” in all dependency proceedings. (Rule 5.481(a).)
ICWA applies only “when a tribe determines that an unmarried minor is: [¶] (A) A member of an Indian tribe; or [¶] (B) Eligible for membership in an Indian tribe . . . .” (Former rule 1439(g)(5).) “If it is determined that [ICWA] applies, the juvenile court hearing shall not proceed until at least 10 days after those entitled to notice under [ICWA] have received notice.” (Former rule 1439(h).) This latter provision appears to apply only if the tribe has determined the child is indeed an Indian child and is not relevant to this proceeding because no such determination was ever made.
Although she acknowledges the record contains no response from any of the tribal authorities who received the notices regarding L.F. (nor does she claim a response was ever made), Carrie F. contends failure to wait for the entire 60-day period (and the court’s failure to notify the tribes of subsequent hearings pending the expiration of the notice period on or about March 23, 2006) requires reversal of the order terminating her parental rights because it deprived the tribes of a full and fair opportunity to respond to the notices they received in January 2006. She argues that, whenever a notice requirement is violated, the juvenile court is without jurisdiction to act and its subsequent orders are void. (See, e.g., In re Jonathan D. (2001) 92 Cal.App.4th 105, 110 [vacating all orders entered without proper notice and requiring recommencement of dependency proceedings]; In re Desiree F., supra, 83 Cal.App.4th at p. 471 [same]; In re H.A. (2002) 103 Cal.App.4th 1206, 1211 [compliance with the letter of ICWA is imperative].)
In other circumstances Carrie F. might have forfeited her right to challenge the juvenile court’s premature determination ICWA did not apply by failing to raise the issue in the juvenile court. Certainly, her counsel (or, equally, the Department) could have brought the premature ruling to the court’s attention and spared the necessity of our review at this juncture. But, because the right to notice belongs to the Indian tribes, a parent can raise the defect on appeal notwithstanding his or her failure to raise it below. “[I]t would be contrary to the terms of the [ICWA] to conclude . . . that parental inaction could excuse the failure of the juvenile court to ensure that notice under the [ICWA] was provided to the Indian tribe named in the proceeding.” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739; see also In re Justin S. (2007) 150 Cal.App.4th 1426, 1435 [“As this court has held, ‘[t]he notice requirements serve the interests of the Indian tribes “irrespective of the position of the parents” and cannot be waived by the parent.’ [Citation.] A parent in a dependency proceeding is permitted to raise ICWA notice issues not only in the juvenile court, but also on appeal even where, as here, no mention was made of the issue in the juvenile court.”]; but see In re Amber F. (2007) 150 Cal.App.4th 1152, 1156 [parent forfeited ICWA notice issues in second appeal after prevailing in first appeal and failing to object on remand to juvenile court’s subsequent handling of ICWA notice]; In re X.V. (2005) 132 Cal.App.4th 794, 804 [same].)
We see no reason to impose such a draconian remedy in this case. ICWA itself requires a court to wait only 10 days after receipt of notice before proceeding with a foster placement or termination of parental rights. (25 U.S.C. § 1912(a).) The sole source of the 60-day waiting period at the time of the court’s premature determination on February 15, 2006 was former rule 1439(f)(6), and we have previously held “[a] violation of ICWA notice requirements may be harmless error . . . when . . . the source of the duty to inquire is not ICWA itself but rather former rule 1439(d), a rule of court implementing ICWA.” (In re H.B. (2008) 161 Cal.App.4th 115, 121.) “‘[A]ny failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error.’” (Id. at p. 122.)
As we noted in In re H.B. (2008) 161 Cal.App.4th 115, 120 to 121, “ICWA provides that states may provide ‘a higher standard of protection to the rights of the parent . . . of an Indian child than the rights provided under [ICWA].’ (25 U.S.C. § 1921.)”
Here, the error was not one of inquiry of the parents or notice to tribal authorities, and the court’s failure to wait the prescribed 60 days before ruling had no impact on anyone. The required 60-day period expired 18 months before the termination order was entered in this case, and none of the tribes ever responded to the court’s notices. (See In re N.M. (2008) 161 Cal.App.4th 253, 267 & fn. 8.) Accordingly, the juvenile court’s premature determination ICWA did not apply was harmless.
DISPOSITION
The order of the juvenile court terminating Carrie F.’s parental rights under section 366.26 is affirmed.
We concur: WOODS, J. ZELON, J.
Senate Bill No. 678, enacted in 2006 and effective January 1, 2007, added several ICWA-related provisions to the Welfare and Institutions Code, including sections 224 through 224.6, which impose requirements substantially similar to those set forth in the referenced rules. (Sen. Bill No. 678 (2005-2006 Reg. Sess.); Stats. 2006, ch. 838, §§ 1-57; see In re Alice M. (2008) 161 Cal.App.4th 1189, 1198.) Although these sections took effect before the juvenile court terminated Carrie F.’s parental rights in October 2007, we do not separately consider their impact as there is no relevant substantive difference between them and the procedures specified in former rule 1439.