Opinion
D041757.
10-14-2003
In re ANDREW R., et al., Persons Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Y.R., et al., Defendants and Respondents.
Y.R. (Mother) appeals judgments terminating her parental rights to her sons, Andrew R. and Joshua R., under Welfare and Institutions Code section 366.26. She asserts the court erred in determining the children were adoptable. She also contends the judgments must be reversed because the court did not provide notice to the Bureau of Indian Affairs (the BIA) under the Indian Child Welfare Act (the ICWA) that children who might have Indian heritage were involved in a proceeding to terminate parental rights. Jaime T. appeals the judgment terminating his parental rights to his son, Joshua, asserting the court erred in determining Joshua was adoptable and joining Mothers argument that the judgment must be reversed because no notice had been sent to the BIA. Because there is no evidence the BIA received notice of the proceedings and its right to intervene more than 10 days before the section 366.26 hearing, we reverse the judgment and direct the court to comply with the ICWA.
All statutory references are to the Welfare and Institutions Code, unless otherwise specified.
We grant Jaimes request to join Mothers supplemental brief.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2001, the San Diego County Health and Human Services Agency (the Agency) removed two-month-old Andrew from Mothers custody and filed a section 300 petition on his behalf asserting the child was at risk because he had been exposed to violent confrontations between Mother and Jaime and Mother used drugs. At the detention hearing, the court found the ICWA might apply, apparently because Andrews maternal grandfather might have some Indian heritage, although neither he nor any family members were registered with a tribe. In September 2001, the court made a true finding on the petition and found the ICWA did not apply. The next month, the court ordered reunification services.
In March 2002, Andrew was placed with maternal relatives in Mexico. The next month, because Mother had not complied with her case plan, the court terminated reunification services and scheduled a section 366.26 hearing.
In August 2002, the Agency reported it was having difficulty with Andrews adoption because the Desarrollo Infantil Familiar (DIF) (the social work agency in Tecate, Baja California Norte, where the prospective adoptive family lived) was not processing the adoption papers of dependent children who were United States citizens. By December, however, the DIF approved the relatives home as an adoptive placement. The next month, the DIF had resolved its concerns about inter-country adoptions.
Joshua was born in July 2002. The Agency removed him from Mothers custody the day after his birth and filed a section 300 petition on his behalf because he and Mother tested positive for drugs at Joshuas birth and Mother had failed to reunify with Andrew. When the social worker asked Mother whether she had any Indian heritage, she told the social worker she was not a registered member of any Native American tribes. Presumably, in response to Mothers statement, the court found the ICWA did not apply. In August, the court made a true finding on the petition. In September, the court removed Joshua from Mothers care, but declined to offer her reunification services because she failed to reunify with Andrew. The court scheduled a section 366.26 hearing.
In February 2003, a nurse practitioner who examined Joshua expressed concern that he might have neurofibromatosis, because he had two cafe au lait spots. Although Joshuas pediatrician was unconcerned because a child needed to present more than seven cafe au lait spots for the spots to significantly predict future neurological problems, the Agency delayed a meeting between Joshua and a prospective adoptive family.
The section 366.26 hearings for the children were held in February 2003. The court found they were adoptable and none of the section 366.26, subdivision (c)(1) exceptions applied. The court terminated parental rights.
DISCUSSION
I
A
Mother asserts the court erred in finding Andrew was adoptable because the Agency did not state any other prospective adoptive family was interested in a child like Andrew and it was unknown whether the DIF would process the adoption application.
When there is no probability a child will reunify with his or her parents, adoption is the Legislatures preferred plan. (In re Heather B . (1992) 9 Cal.App.4th 535, 546.) To select and implement adoption as a childs permanent plan, the court must first find, by clear and convincing evidence, it is likely the child will be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).) To determine whether a child is adoptable, the court focuses on whether the childs age, physical condition, and emotional state will create difficulty in locating a family willing to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) We review a finding a child is adoptable to see if substantial evidence supports that finding. (In re Asia L. (2003) 107 Cal.App.4th 498, 509.)
Here, the social worker believed Andrew was adoptable because he was in good health, was developing normally, was a lovable good baby, had no beneficial relationship with his parents, and his present caretakers were willing to adopt him. Moreover, he recognized his maternal relatives as his parents and was very attached to them.
Mother asserts Andrew was not generally adoptable because there is no statement from the social worker that other families were interested in him. However, she cites no authority that holds there must be evidence other adoptive families are willing to take a child who is placed in an adoptive home. To the contrary, the fact that a prospective adoptive parent is willing to adopt a child is evidence that the childs age, physical condition, or mental state are not likely to dissuade others from adopting the child. (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) That willingness to adopt generally indicates the child is likely to be adopted within a reasonable time either by the prospective adoptive family or by another family. (Id. at p. 1650.) Consequently, the fact that the social worker did not state other families were interested in a child like Andrew is irrelevant because he was placed in an adoptive home.
Mothers only authority that Andrew is not adoptable because there were no other prospective adoptive homes is In re Amelia S. (1991) 229 Cal.App.3d 1060. However, in that case, the court determined insufficient evidence supported the trial courts finding that 10 developmentally delayed children were adoptable because the children were mentally disabled, the Agency wanted to place them together, and there were no prospective adoptive parents. (Id. at p. 1065.) Here, there was no evidence Andrew was developmentally disabled, the Agency did not need to place him with Joshua because they had no bond, and he was living with a family that wanted to adopt him. Consequently, In re Amelia S. does not aid Mother.
Mother also claims Andrew is unlikely to be adopted because it was unknown whether the DIF would sign the adoption papers. The record reflects that several months before the section 366.26 hearing, the social worker was concerned about freeing Andrew for adoption because the DIF officers were reluctant to sign the adoption papers. However, there is no evidence the DIF was concerned Andrew was not adoptable or the prospective adoptive family was unsuitable. To the contrary, the DIF positively evaluated the home for placement in December 2001 and by the following December had approved the home study. By the time of the section 366.26 hearing, the Agency was "confident" the DIF would sign the adoption documents in the near future because its concerns had been resolved.
Mother, citing In re Asia L., supra, 107 Cal.App.4th 498, asserts the social workers statement that she was "confident" the adoption documents would be signed was insufficient. However, in In re Asia L., the court reversed the finding of adoptability because the social worker identified no prospective adoptive parents who were interested in the child and could only express confidence the Agency would find a family. (Id. at p. 512.) There was no factual foundation for the social workers confidence. Here, the social worker was confident the DIF would sign the adoption papers because its concerns about doing so had been resolved. Moreover, even if the DIF continued to be reluctant, the prospective adoptive family would move to San Diego to complete the adoption. They owned a house here and had sufficient resources to allow them to move. The social worker believed they would be approved to adopt if the application were made here. Mother introduced no contrary evidence. Because the evidence showed either the DIF or the Agency would complete the adoption within a reasonable time, substantial evidence supports the finding that Andrew is adoptable.
B
The parents assert the court erred in determining Joshua was adoptable because he may have significant health problems. As discussed, ante, to determine a childs adoptability, the court focuses on whether the childs age, physical condition, and emotional state will create difficulty in locating a family willing to adopt the child. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.)
The record shows that shortly before the section 366.26 hearing, a nurse practitioner who examined Joshua raised concerns he might have neurofibromatosis because he had two cafe au lait spots on his right axilla and back, had increased extensor tone, arched his back, and expressed a left-hand preference. However, Joshuas pediatrician was unconcerned about the spots because a child must present more than seven cafe au lait spots for such spotting to be a significant predictor of future neurological problems.
Moreover, when a social worker is aware of a childs health problem, but believes the problem does not preclude the childs adoptability, the problem by itself does not render the child unadoptable. (In re Jeremy S. (2001) 89 Cal.App.4th 514, 523-525, disapproved on another ground by In re Zeth S. (2003) 31 Cal.4th 396, 413-414 .) Here, the court accepted the Agencys offer of proof that 44 families were willing to adopt Joshua even if he had neurofibromatosis. The parents introduced no contrary evidence.
Jaime challenges the social workers offer of proof that 44 families would be interested in adopting Joshua because the parties did not stipulate to the truth of the matter, but merely to what the social worker would say. However, because neither parent cross-examined the social worker or offered any evidence contradicting the offer of proof, the court could determine the evidence was credible, a determination we do not reweigh. (In re Casey D. (1999) 70 Cal.App.4th 38, 52-53.)
The parents, citing In re Asia L., supra, 107 Cal.App.4th 498 and In re Jerome D. (2000) 84 Cal.App.4th 1200, claim the evidence that 44 families were willing to adopt Joshua even if he had neurofibromatosis was insufficient because the social worker did not state the families had been approved by the Agency to adopt or wanted Joshua. However, the only logical inference to be drawn from the social workers statement that 44 families were available to adopt Joshua is that those families were on the Agencys list of approved adoptive homes. The authorities relied upon are distinguishable because in In re Asia L. and In re Jerome D., the children had significant problems and the Agency had located no approved homes. (In re Asia L., supra, 107 Cal.App.4th at p. 512; In re Jerome D., supra, 84 Cal.App.4th at pp. 1204-1205.) Here, there was no evidence that Joshua had a health problem, only a nurse practitioners opinion that he might, an opinion not shared by Joshuas pediatrician and the Agency had located several prospective placements.
The parents also claim Joshua was not adoptable because the Agency had not been able to place him in an adoptive home for five months before the neurofibromatosis issue arose. The record shows the delay in placement was unrelated to Joshua. The Agency initially delayed placing him to determine whether maternal relatives would be able to take him. When no relatives were available, the social worker made a referral to the adoption placement committee. For reasons not explained in the record, there was a delay in the referral, but we infer the delay had nothing to do with Joshua, because the social worker said he would have no problem being adopted as he met the criteria of most families applying. By January 2003, the social worker had located an appropriate prospective adoptive family, and a meeting was scheduled to present Joshua to the family.
The parents assert the court erred in finding Joshua was adoptable because the Agency put his adoption "on hold" after the nurse practitioner raised the possibility that he might have neurofibromatosis. However, from that statement, we infer the Agency wanted to have all the facts before it introduced Andrew to his prospective adoptive family. Although other inferences may be drawn from the Agencys decision, we must draw all reasonable inferences in support of the findings, and disregard that which supports a contrary conclusion. (In re Baby Boy L. (1994) 24 Cal.App.4th 596, 610.) Because there are reasonable inferences to be drawn that support the conclusion Joshua is adoptable, putting the adoption "on hold" does not show Joshua was unadoptable, particularly because 44 families were willing to take him even if he had neurofibromatosis. Substantial evidence supports the courts finding that Joshua was adoptable.
II
The parents assert the judgments must be reversed because the Agency did not serve the BIA with notice that the children might have Indian heritage. We agree.
Congress enacted the ICWA in 1978 to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) It allows a tribe to intervene in state court dependency proceedings (25 U.S.C. § 1911(c)) because the "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.)
"[W]here the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings, and their right of intervention." (25 U.S.C. § 1912(a).) Notice to the tribe provides it the opportunity to exercise its right to intervene. (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791.) "Notice shall 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 the child is not an Indian child." (Cal. Rules of Court, rule 1439(f)(5).) No proceeding to terminate parental rights may occur until 10 days after the tribe has received the notice. (25 U.S.C. § 1912(a).) If proper notice is not given to the tribe, the order terminating parental rights may be voided. (25 U.S.C. § 1914.)
The childs status as an Indian need not be certain to require notice be served. (In re Desiree F., supra, 83 Cal.App.4th at p. 471.) The possibility that a grandparent might have Indian heritage is sufficient to send notice. (See Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254-257.) Because the Agency knew the childrens maternal grandfather might have Indian heritage, the duty to send notice was triggered.
The Agency, without authority, contends that because no family member was enrolled as a member of a tribe, no notice was necessary and the court could reasonably conclude the ICWA did not apply. However, as we recently held, enrollment in a tribe is not required to invoke the notice requirement of the ICWA. (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 254.) A parents statement that he or she might have Indian heritage is sufficient to trigger the notice requirement even though the parent is not registered with any tribe. (Id. at pp. 257-258.) Moreover, the tribe, not the court, determines whether the child is eligible for membership. (Id. at p. 254.) Thus, the court could not rely on the fact that no family member was registered with a tribe to determine the ICWA did not apply. Likewise, the maternal grandfathers potential Indian heritage is sufficient to trigger the Agencys duty to send notice. Because the Agency did not send notice more than 10 days before the section 366.26 hearing, the matters must be remanded for proper notice to be given.
We recognize that since the notices of appeal were filed, the Agency contacted the maternal grandmother who indicated that to the extent the maternal grandfather had any Indian blood, he was likely related to tribes from Durango, Mexico, which would mean the ICWA would not apply, as it applies only to the tribes in the United States. (25 U.S.C. § 1903 (8), (11).) In addition, the Agency served the BIA with notice that proceedings were occurring and that Joshua and Andrew might have Indian heritage. However, because we denied the Agencys motion to take additional evidence, we consider only that which was before the trial court at the time of the section 366.26 hearing.
DISPOSITION
The judgments terminating Mothers parental rights to Andrew and terminating Mothers and Jaimes parental rights to Joshua are reversed and the court is directed to comply with the notice provisions of the ICWA. If after proper notice and inquiry a tribe does not intervene, the judgments shall be reinstated. If a tribe intervenes, the court is ordered to conduct a new section 366.26 hearing in accordance with the ICWA. (See In re Jonathan D. (2001) 92 Cal.App.4th 105, 111-112.)
WE CONCUR: HUFFMAN, J. and AARON, J.