Opinion
NOT TO BE PUBLISHED
San Mateo County Super. Ct. No. 77126
Margulies, J.
The mother of five-year-old S.H. (Mother), appeals from an order terminating her parental rights. Mother maintains the order must be reversed because the juvenile court (1) abused its discretion in denying the San Mateo County Human Services Agency’s (Agency) request for a continuance of the Welfare and Institutions Code section 366.26 hearing due to questions raised about the prospective adoptive family, (2) erred in making a finding of adoptability before an investigation of the prospective adoptive family’s ability to adopt could be completed, and (3) failed to comply with the notice and inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). We agree that the Agency did not provide adequate information in the ICWA notices it sent out and will conditionally reverse the juvenile court’s findings and orders so that proper notice of the proceedings may be given to the tribes in question.
All statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
A. Section 300 Petition
S.H. was detained on May 29, 2007, shortly after her third birthday. A section 300 petition alleged that Mother, who had a significant history of drug abuse and incarcerations, had been incarcerated on May 29, 2007, putting the minor at risk of abuse or neglect and that Mother’s parental rights to the minor’s half sibling, V.Z., had been terminated in December 2001, after Mother failed to reunify with her. The petition further alleged that (1) Mother tested positive for amphetamines and methamphetamines when V.Z. was born; (2) after V.Z. was detained, Mother failed to utilize treatment for her drug addiction, and V.Z. was eventually adopted; and (3) S.H. had been left without provision for her support while Mother was incarcerated and the father’s whereabouts were unknown.
B. July 17, 2007 Jurisdiction/Disposition Report
A jurisdictional/dispositional report dated July 17, 2007, contained the following information:
Mother had been removed from her mother’s care at the age of seven due to the maternal grandmother’s alcoholism and drug use. She was adopted at the age of nine. At the age of 16, she sought out her birth mother in California but after two weeks her birth mother (minor’s maternal grandmother) refused to care for her any longer. Mother began her drug use at the age of 12, and became a ward of the court at the age of 17, due to drug use charges. She was twice ordered to complete substance abuse treatment by the court. She failed to complete one program in 1998, but graduated from another program later in that year. Mother had numerous arrests dating back to 2001, for minor criminal violations.
In addition to V.Z. and S.H., Mother also has a son, born approximately one year after Mother’s parental rights as to V.Z. were terminated. The son is being raised by his father and paternal grandparents by order of the family court. At the time of her arrest in May 2007 (after police, responding to a report that she had stolen a vehicle, discovered she had outstanding arrest warrants), Mother and S.H. had been residing in a home where there had been 106 police responses in the previous two years that involved gun shots in the home, a homicide in the home, and several calls regarding drug activity and suspicious vehicles.
Because Mother initially refused to sign consent forms for the release of information about S.H. and refused to talk with the social worker, the social worker spoke with S.H., S.H.’s maternal grandmother, and others who had contact with Mother. S.H. reported that Mother spanked her “hard” on her rear-end twice and frequently told her to “go away.” S.H.’s foster parent reported that she had seen S.H. sometimes put objects in her private parts and had once seen her pull her pants down while playing with a little boy and put her hands on either side of her vagina, showing it to the boy. The maternal grandmother reported that Mother had been on drugs for a very long time, had failed past treatment programs, and could not take care of herself much less S.H. She also reported that she believed S.H. was molested by her paternal grandfather while in Mother’s care. S.H. made statements to the social worker indicating that such a molestation had in fact taken place. Friends of Mother confirmed her longtime drug use, instability, and inability to provide a home for S.H.
Based on section 361.5, subdivision (b)(11), the Agency did not recommend offering reunification services to Mother and the Agency’s proposed case plan set adoption as the goal for S.H.
Section 361.5, subdivision (b)(11) provides in substance that reunification services need not be provided to a parent if the parent’s parental rights regarding any sibling or half-sibling have been severed and the parent has not subsequently made a reasonable effort to treat the problems that led to the removal of the sibling.
C. Jurisdiction Hearing
The uncontested hearing set for July 17, 2007, was continued to August 30, 2007 for a contested hearing. An addendum report was prepared for the hearing. After Mother’s release from jail on July 16, 2007, she began participating in the Women’s Recovery Association’s (WRA) treatment-readiness program, and was accepted at WRA’s residential treatment program on August 1, 2007. According to program staff, Mother was actively participating in her recovery, doing well in treatment, and appeared to be serious about her sobriety and about reuniting with her daughter.
As a result of these positive developments, the social worker modified her recommendations. She recommended that Mother be offered reunification services and modified the case plan to reflect a goal of returning S.H. to her mother. Mother submitted on the social worker’s reports, and the court adopted the Agency’s recommendations and authorized S.H.’s placement with Mother at WRA when a bed was available.
D. Review Hearings
In an interim review report filed on November 27, 2007, the social worker reported that that Mother had not been in communication with the Agency or in compliance with her case plan since her discharge from the WRA program on October 30, 2007. Mother was not present at the November 29, 2007 interim review hearing.
In a February 8, 2008 report prepared for the six-month review hearing, the Agency recommended that reunification services be terminated. According to the report, Mother was incarcerated on a probation violation and had failed to comply with her case plan or maintain visitation with the minor. When interviewed, Mother admitted that she had relapsed into drug use and had reunited with a boyfriend who had physically abused her.
The February report noted that S.H. had been in placement since August 2007 and had adjusted quite well to her placement. She had formed an attachment to her caregivers and they had expressed an interest in adopting her.
An April 2008 addendum report stated that although Mother had been released from custody and made attempts to comply with the case plan, she had not been consistent with drug testing or with the WRA aftercare program.
At the April 25, 2008 review hearing, the trial court terminated reunification services and visitation, and set the matter for a section 366.26 hearing. The court noted Mother’s statement that she might have Indian heritage and found that the ICWA did apply.
E. Section 366.26 Reports and Hearing
The Agency’s section 366.26 report dated August 7, 2008, recommended termination of Mother’s parental rights and adoption as the permanent plan. According to the report, S.H. was developmentally on target and was no longer in therapy or presenting with any negative behaviors. The social worker reported that S.H. was comfortable with her caregivers and had formed a healthy and solid attachment to them. An analysis of the likelihood of adoption prepared by fost/adopt social worker, Kristen Klein, described S.H. as “a delightfully spirited, sociable four-year-old” who “is able to express what she wants, is good at following directions, and has an endearing nature.” Klein’s analysis also pointed to S.H.’s successful adaptation to her foster home as evidence of her adoptability: “Due to [S.H.’s] ability to create an emotional bond to her caregivers, due to [S.H.’s] ability to change and improve her behaviors and emotional wellbeing from residing in a healthy, secure environment, and due to [S.H.’s] age and good health, [S.H.] is considered an adoptable child.” Klein noted that S.H. did not have a relationship with her older half-sibling who was previously adopted.
The report discussed S.H.’s placement since August 2007 at length, and noted that the caregivers had completed their adoptive home study and the social worker had received a verbal confirmation that the home study had been approved. The caregivers were committed to raising S.H. permanently if she were unable to return to her mother, but would require on going support from the Adoption Assistance Program. However, Klein’s finding of adoptability was not contingent on S.H. being adopted by her caregivers: “Should the current caretakers no longer be considered for a Fost/Adopt placement or should they no longer be able or willing to proceed with the plan for adoption for some unforeseen reason if parental rights are terminated..., this Social Worker is confident that another appropriate adoptive family could be identified on behalf of this child.”
The August 2008 report included copies of letters received from the Cherokee Nation, the United Keetoowah Band of Cherokee Indians in Oklahoma, and the Bureau of Indian Affairs indicating that S.H. was not considered an “Indian child.” A negative response from the Eastern Band of Cherokee Indians was received before the section 366.26 hearing.
Because Mother was incarcerated on the date originally set for the section 366.26 hearing, the hearing was continued to September 22, 2008, so that she could attend. An addendum report prepared for the hearing requested a 30-day continuance of the hearing due to the Agency’s receipt of confidential information regarding S.H.’s placement that it wanted to submit to the court under seal for in camera review. The court held an in camera hearing on the addendum report on September 22, in which Mother was not allowed to be present except through counsel. The Agency took the position that it could not complete a full assessment of S.H.’s placement until the confidential information had been evaluated, and that it preferred not to sever parental rights until the child was in a permanent fost/adopt placement. Mother’s trial counsel joined the Agency’s request for a continuance, but minor’s attorney opposed the request, and the juvenile court denied it. Following the in camera hearing, the parties convened for the section 366.26 hearing with Mother present.
The August 2008 section 366.26 report and addendum report were admitted in evidence. Kristen Klein was the only witness to testify. Under questioning by Mother’s trial counsel, Klein testified that S.H. was in a foster home and that no specific adoptive home had been identified for her as of the hearing date. However, in response to a question posed by the court, Klein stated that S.H. was adoptable. She admitted the Agency normally preferred that the child already be in a fost/adopt placement before it recommended the termination of parental rights. Under questioning by S.H.’s counsel, Klein testified that based on her young age, adorable features, and cheerful demeanor, S.H. was adoptable.
Mother’s counsel argued in closing that the matter be put over until a confirmed adoptive placement could be found for S.H. She stated that this would provide a safety net for the minor so that she would not end up being an “orphan adrift in the system” if no adoptive home could be found. The court rejected counsel’s arguments, found S.H. adoptable, and terminated Mother’s parental rights as well as the rights of her unknown father: “I think [S.H.] deserves to have her life move along and not be hanging here with respect to mom’s connection. And while I... understand the caution that the [Agency] wishes to pursue, I’m going to find that the burden of proof has been met by the [Agency by] clear and convincing evidence that [S.H.] clearly is an adoptable child, and the issue of whether she presently has a place to be adopted doesn’t bear on that issue.... It may be circumstantial evidence as to whether she is adoptable, but from the evidence presented by these documents and what I have heard before, she clearly is adoptable.”
The court also found that the ICWA did not apply.
Mother timely filed a notice of appeal.
II. DISCUSSION
Mother maintains the order terminating her parental rights must be reversed because the juvenile court (1) abused its discretion in denying the Agency’s request for a continuance, (2) erred in making a finding of adoptability on insufficient evidence, and (3) failed to comply with the notice and inquiry requirements of the ICWA.
A. Denial of Continuance
Continuances in dependency proceedings cannot be granted without giving primary consideration to the minor’s interest in stability: “Upon request of counsel..., the court may continue any hearing under this chapter beyond the time limit within which the hearing is otherwise required to be held, provided that no continuance shall be granted that is contrary to the interest of the minor. In considering 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. [¶] Continuances shall be granted only upon a showing of good cause and only for that period of time shown to be necessary by the evidence presented at the hearing on the motion for the continuance.” (§ 352, subd. (a).) The standard of review on appeal of a denial of a continuance is abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 180.)
At the outset, we reject the Agency’s claim that Mother forfeited objection to the court’s denial of a continuance by failing to object in open court to proceeding with the hearing. Mother’s counsel made Mother’s position known to the court during the in camera hearing, and the court acknowledged Mother’s support for a postponement before the in-court hearing commenced. That was sufficient to preserve the issue for review. Further, once the court denied the continuance, Mother’s counsel had no choice but to make the best of the situation by participating in the hearing on behalf of her client. We will not construe such action as a forfeiture.
On the merits, the issue presented is whether the denial of a continuance was so manifestly contrary to the best interest of the minor that we can say the juvenile court abused its discretion in refusing to grant it. Mother states the substance of her argument in this regard as follows: “The denial of the continuance was not in the best interest of this minor as the issues created by its denial and the juvenile court’s subsequent determination to terminate [Mother’s] parental rights has resulted in this appeal where remand and reversal are required, thereby delaying permanency substantially longer than any possible delay [resulting from a continuance].” In other words, Mother believes that the fact she has brought an appeal raising the issue of the continuance proves the issue has merit. This presents a classic case of bootstrapping that does not warrant extended comment. Suffice it to say that section 352 does not require the juvenile court to guess whether granting a continuance would avoid a possible future appeal. It was only required to consider whether there was sufficient good cause for the delay so as to overcome the minor’s interest in a prompt resolution of her family status.
S.H.’s appellate counsel, reversing the position taken by the minor’s trial counsel, questions the court’s decision on a more substantive ground. Minor’s counsel points out that the new information received about the potential ineligibility of S.H.’s caregivers to adopt her raised the specter of a potential change of placement, and threw into question any inference about S.H.’s adoptability that might otherwise arise if there was a fully approved fost/adopt family committed to adopting her. According to minor’s appellate counsel, because the Agency was not yet in a position to determine whether the caregivers could ever adopt S.H., the investigation the Agency sought time to complete was “a critical piece of the adoptability analysis,” and the court should not have proceeded without it. Counsel argues that there was, furthermore, “no evidence [S.H.] could transfer her attachment in a healthy manner... to a stranger adoptive family, and the Adoptions assessment identified no other family.”
We view the facts before the court when it denied the continuance request somewhat differently. The Agency’s counsel told the court that the new information did not prevent the court from terminating Mother’s parental rights and that it was simply the Agency’s preference, out of an “abundance of caution,” that any uncertainty about S.H.’s placement be resolved before the section 366.26 hearing took place. He represented that if the social worker was able to testify that the child is generally adoptable, as Ms. Klein was in fact prepared to do, then there was no impediment to proceeding. According to counsel, the worst-case scenario of S.H. not being adoptable by any family other than her current caregivers was unlikely given her young age and the fact that she exhibited no “explosive behavioral problems.” Minor’s trial counsel opposed a continuance on the ground that S.H. was “highly adoptable” and that the termination of parental rights should not be “put on hold.”
We cannot say that the juvenile court abused its discretion. The court had to weigh the remote possibility that it would arrive at a different decision about terminating Mother’s parental rights or about S.H.’s adoptability if the minor’s adoption by her current caregivers fell through against the much greater likelihood that it would be compelled by the facts to reach the same decision without regard to the permanence of the current placement. If it was convinced the same decision would be required, granting a continuance would serve only to leave the minor’s future in limbo and frustrate the dependency law’s clear preference for expedition. Furthermore, the length of that delay was difficult to predict, especially if the minor’s caregivers turned out to be ineligible to adopt S.H. If a continuance had to be granted because of doubt about the minor’s current placement, the same logic would preclude rescheduling the hearing until an appropriate new prospective adoptive family had been found and thoroughly checked out, and additional time had been allowed for S.H. to transition into it. The court was not constrained to accept such a delay merely because the Agency had a generic preference, not required by law, for delaying a section 366.26 hearing until an approved fost/adopt placement was found.
Further, if there were facts suggesting, contrary to Ms. Klein’s written assessment, that S.H. might not be generally adoptable, the court would be in a better position to learn of those facts if it allowed the hearing to proceed. Even if the court proved to be wrong, the mistake would not be irreparable. The Agency’s continuance request rested at bottom on a worst-case assumption that the minor would not be adopted if the existing placement failed. But even in the worst case—if the existing placement failed to lead to adoption and the court erroneously found the minor to be generally adoptable—section 366.26, subdivision (i)(2) provided a procedure for the court to correct its mistake.
Subdivision (i)(2) of section 366.26 provides in pertinent part: “A child who has not been adopted.... may file [a petition to reinstate parental rights]... if the State Department of Social Services or licensed adoption agency... responsible for custody and supervision of the child... and the child stipulate that the child is no longer likely to be adopted.... The juvenile court shall grant the petition if it finds by clear and convincing evidence that the child is no longer likely to be adopted and that reinstatement of parental rights is in the child’s best interest.”
Considering all of the circumstances, we cannot say that the trial court’s denial of the request for a continuance in this case was arbitrary, capricious, or patently irrational. (See In re Stephanie M. (1994) 7 Cal.4th 295, 318.)
B. Adoptability
Mother and minor’s appellate counsel contend the trial court’s finding that S.H. was adoptable is not supported by substantial evidence. We are not persuaded.
“The issue of adoptability requires the court to focus on the child, and whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt. [Citations.] It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. [Citations.] However, there must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]” (In re Brian P. (2002) 99 Cal.App.4th 616, 624, italics added.) Section 366.26, subdivision (c)(1) specifically provides that “[t]he fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” Further, if the child is in a preadoptive home, but is generally adoptable, questions concerning the suitability of the prospective adoptive parents are irrelevant and impermissible in a section 366.26 hearing. (In re R.C. (2008) 169 Cal.App.4th 486, 494 (R.C.); In re Carl R. (2005) 128 Cal.App.4th 1051, 1061; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) “Rather, a caregiver’s willingness to adopt serves as further evidence the minor is likely to be adopted within a reasonable time either by the caregiver ‘or by some other family.’ ” (R.C., at p. 494, italics omitted.)
Mother argues that the only evidence of the minor’s adoptability was the social worker’s “positive opinion” of her and that this was insufficient. But as the leading treatise on California dependency law notes, the Agency’s burden of proof is often met by “the opinion of an experienced adoptions worker that an adoptive placement can be found for the child, and an explanation of the reasons for that opinion.” (Seiser & Kumli, Cal. Juvenile Courts Practice and Procedure (2009) § 2.171[5][b], p. 2-406.) Here, the evidence included a written analysis of the likelihood of adoption prepared by the fost/adopt social worker, Kristen Klein. Klein stated that she was “confident” another appropriate adoptive family could be found for S.H. if her current caretakers could not adopt her and cited numerous reasons for reaching that conclusion. S.H. was only four years old and was in good health. She had many endearing qualities, including her sociability and good spirits, her ease in expressing herself and following directions, and her interests in a variety of school, art, and play activities. She had shown the ability to overcome earlier negative behaviors and tantrums in a nurturing environment, and the capacity to transfer her parent-child bond from her mother to her primary caregivers. She had no sibling relationships that might complicate her adoption. These facts before the court constituted substantial evidence, focusing on S.H.’s age, physical condition, and emotional state, of her general adoptability.
Minor’s appellate counsel nevertheless insists that S.H.’s emotional well-being and adoptability were inextricably linked to the eligibility of her existing caregivers to adopt her. We are not persuaded. The fost/adopt social worker gave a lot of credit to S.H.’s caregivers, but she expressly stated that her adoptability opinion did not depend on the eligibility or availability to adopt of these particular caregivers. Moreover, contrary to the argument of minor’s appellate counsel, the fact that one psychologist who assessed S.H. in August 2007 believed she might qualify for a diagnosis of reactive attachment disorder, does not undermine Ms. Klein’s analysis nor show that S.H.’s adoptability is based exclusively on her ability to bond to these specific caregivers. Counsel suggests in particular that removing S.H. from her existing placement might cause her abandonment issues to resurface and render her unadoptable. But speculation about possible future problems a minor may have does not preclude a finding that she is likely to be adopted. (See R.C., supra, 169 Cal.App.4th at p. 492; In re Jennilee T. (1992) 3 Cal.App.4th 212, 223–225; see also In re A.A. (2008) 167 Cal.App.4th 1292, 1311–1313 [rejecting claim that trial court improperly relied on willingness of current caregivers to adopt minors diagnosed with attachment disorders; court could properly consider minors’ psychological progress in current placement as evidence of general adoptability]; In re Helen W. (2007) 150 Cal.App.4th 71, 75, 79–80 [upholding adoptability of child with reactive attachment disorder despite mother’s claim that court impermissibly relied only on foster mother’s intention to adopt].)
We also reject Mother’s claims that the section 366.26 report was deficient and that her counsel rendered ineffective assistance. Because S.H.’s existing caregivers were not being proposed as prospective adoptive parents at the section 366.26 hearing, no assessment of their eligibility or social history was required under section 366.21, subdivision (i)(1)(D) or section 366.22, subdivision (c)(1)(D). Mother’s ineffective assistance claim also fails. To prove ineffective assistance, Mother has the burden of demonstrating prejudice. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667–1668.) Even assuming counsel was deficient in failing to make an adoptability argument, Mother fails to show what arguments her counsel might have made that would have been reasonably likely to change the result. (See In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)
C. ICWA Issues
Mother contends the Agency failed to conduct an adequate inquiry into S.H.’s possible Indian ancestry and failed to provide the potentially affected tribes with information required to determine whether S.H. is an Indian child for purposes of the statute. Minor’s appellate counsel joins in Mother’s arguments with regard to the notices provided and points out additional deficiencies in the notices. For its part, the Agency concedes that the notices were defective in failing to include Mother’s biological mother’s name and other identifying information that was apparently gathered from Mother and her relatives.
We agree that the notices were deficient in failing to provide more identifying information, especially in light of statements in the record that the social worker or the Agency (1) had previous contact with and knew the name of Mother’s biological mother; (2) received detailed information from Mother on February 6, 2008, that allowed the social worker to contact appropriate family members; and (3) contacted Mother’s great-aunt in Colorado the next day and received detailed information from her. Instead of using all of the information available to it, the Agency used Mother’s adoptive name in the notices and did not provide her biological mother’s name or any other names of known relatives or other identifying information that might have been obtained from Mother’s mother or aunt.
The appropriate remedy for the notice deficiencies in this case is to conditionally reverse and remand the order terminating parental rights to allow adequate notice to be given to the tribes in question. The notices must contain the name of the minor’s biological maternal grandmother as well as any other relevant identifying information the Agency has obtained from Mother, the maternal grandmother, Mother’s aunt, and other relatives contacted, if any. If no tribe responds to the augmented notices or the responses received indicate that the minor is not an Indian child, the order terminating parental rights should be reinstated. If any tribe determines the minor is an Indian child, the juvenile court should conduct a new section 366.26 proceeding applying the provisions of the ICWA and state law implementing it.
Minor’s appellate counsel also points out that (1) notices to the Cherokee Nation and the United Keetoowah Band of Cherokee Indians were not properly addressed to the tribal representatives specified in the Federal Register, and (2) notices are required to be sent for each hearing until it is determined by the court that the ICWA does not apply. On remand, the Agency and court should ensure that the new notices are properly addressed and advise the tribes of any further hearings until all ICWA notice requirements have been satisfied. (See § 224.2, subd. (b).)
III. DISPOSITION
The juvenile court’s findings and orders terminating Mother’s parental rights, determining the minor is adoptable, and ordering a permanent plan of adoption are conditionally reversed. The matter is remanded to the juvenile court with directions to proceed in compliance with the notice provisions of the ICWA and section 224.2, in accordance with the views expressed in this opinion. If, after proper notice to the potentially affected tribes, the court finds that the minor is an Indian child, the juvenile court shall proceed in accordance with the ICWA and section 224 et seq. If, however, the juvenile court finds that the minor is not an Indian child, the court shall reinstate its findings and orders terminating parental rights, determining the minor is adoptable, and ordering a permanent plan of adoption.
We concur: Marchiano, P.J., Dondero, J.