Opinion
NOT TO BE PUBLISHED
Solano County Super. Ct. No. J34597
SIMONS, Acting P.J.
Latoya S. (Mother) appeals the termination of her parental rights and the finding that her child, Faith H., born in September 2004, is likely to be adopted. (Welf. & Inst. Code, § 366.26.) She contends substantial evidence does not support the trial court’s finding that Faith is likely to be adopted. She also contends, and the Solano County Health and Social Services Department (Department) agrees, that the Department failed to comply with the notice provisions of the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.; Cal. Rules of Court, former rule 1439.) We reverse and remand with directions solely to ensure compliance with the ICWA.
All undesignated section references are to the Welfare and Institutions Code.
All rule references are to the California Rules of Court.
Background
In March 2004, a section 300 dependency petition was filed on behalf of Mother’s older daughter, A.R., who was then two years old. The sustained petition alleged Mother was incarcerated and had left A.R. with her maternal grandmother, who was an inappropriate caretaker due to her past abuse of Mother and due to reported drug sales occurring out of her home.
In September 2005, A.R.’s father was given full legal and physical custody over her. Mother was granted visitation and the dependency was terminated. A.R. is not a party to this appeal.
In September 2004, Mother gave birth to Faith while still incarcerated. Faith, who was born prematurely, was detained at the hospital. On September 14, the Department filed a section 300 petition alleging Mother was unable to provide care, support and supervision for Faith due to her incarceration for drug trafficking. The petition also alleged that Mother authorized the release of Faith to Faith’s maternal grandmother despite the grandmother’s past abuse of Mother, and alleged the same allegations that had been sustained regarding A.R. The petition stated that “alleged” father Lawrence H. (Father) was incarcerated and had sold base cocaine to an undercover officer in the presence of A.R. The petition also alleged that Faith “may be of Indian ancestry.” Mother did not contest the allegations of the petition, and it was sustained.
Father is not a party to this appeal.
The Department’s September 14, 2004 detention report stated that Father believed he might be of Cherokee ancestry, but was unable to provide the name of the relative who had Cherokee heritage. The report stated the Department would submit the appropriate notification to the named tribe. At the September 15 hearing at which counsel was appointed for Father, Father said his deceased great-grandfather, Artis D., may have had Indian heritage. He also said that Artis D.’s daughter, Ruby A., lived in California.
Thereafter, the Department sent a notice of involuntary child custody proceeding involving an Indian child (SOC 319) to the Bureau of Indian Affairs (BIA), the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the United Keetoowah Band of Cherokee. The Department also sent a request for confirmation of child’s status as Indian (SOC 318) to the three Cherokee tribes. The SOC 319 listed Faith’s name, birth date and state of birth, but not her birth city. It also listed Mother’s full name, birth date and birthplace; and listed Father’s name and birth date, but not his place of birth. The SOC 318 listed Mother’s full name, birth date, and birthplace under “Child’s Family History,” but did not list the maternal grandmother. The SOC 318 also listed Father’s name and birth date, but not his birthplace or the names of his great-grandfather, grandmother and aunt, which were known to the Department. The SOC 318 also failed to list any tribal affiliation or location despite Father’s expressed belief that he had Cherokee ancestry.
In October 2004, the three Cherokee tribes informed the Department that based on the information provided by the Department, Faith was not an Indian child in relation to those tribes and the tribes were not empowered to intervene in the dependency matter.
At the time of the November 2004 jurisdiction/disposition hearing Mother remained incarcerated and had weekly visits with Faith, who had been placed in foster care on October 6. The January 2005 jurisdiction/disposition hearing report stated that the foster family was willing to adopt her.
The January 2005 jurisdiction/disposition order adjudged Faith a dependent child, and ordered reunification services to Mother. The court also found that the Department had made reasonable efforts to comply with ICWA notice requirements.
The Department social worker’s June 2005 six-month status review report stated that in February, Mother was transferred from the county jail to Chowchilla Prison, where she remained until her release in June. Although Faith suffered from prematurity and mild respiratory distress at birth, she appeared to be in good health and had no unmet health needs and no known mental or emotional issues. She was placed with Ruby D. and paternal aunt T.M., in May, both of whom had been cleared for placement by “Live Scan.” The report also stated that Trudy D. had been ruled out as an appropriate placement, given her criminal history between 1978 to 2003.
The record is inconsistent between Trudy D. and Ruby D. as to which is the paternal grandmother and which is the paternal great-grandmother.
The June 2005 report noted that Mother was not complying with many elements of her reunification plan, needed intensive anger management and domestic violence treatment based on her history, a medical evaluation, individual psychotherapy, parenting classes, independent living skills training and domestic violence classes. The report recommended terminating reunification services to Mother and setting the matter for a section 366.26 selection and implementation hearing (hereafter .26 hearing). However, the court ordered continued reunification services to Mother.
The Department social worker’s 14-month review hearing report stated that Mother was complying with her parole guidelines, had made good progress on her reunification plan since her August 2005 release from prison, was visiting Faith regularly and was working. Faith was in good general health, was below average in her fine motor skills, and was functioning fine mentally and emotionally. An adoptability review was conducted in December 2005, and Faith’s relative caretakers expressed a willingness to provide a permanent home for her in the event she was not reunified with her parents. Faith was thriving in the relative placement. In January 2006, the court ordered continued reunification services and unsupervised visitation to Mother and termination of reunification services to Father.
The Department social worker’s 18-month status review hearing report stated that Mother was residing with the maternal grandmother and attending a job training program, but her progress in complying with her case plan had “greatly deteriorated.” Visitation with Faith was sporadic and inconsistent and attendance at therapy and classes was inconsistent. Faith appeared to have no significant residual effects of being born prematurely, showed improvement in her fine and gross motor skills, was in good general health, was functioning fine mentally and emotionally and had no known unmet needs. A June 2006 adoptability review found Faith to be “very appropriate” for adoption and she continued to thrive in her relative placement. The Department recommended termination of reunification services to Mother and setting of a .26 hearing. In September, the court terminated reunification services to Mother and set a .26 hearing for January 3, 2007.
In April 2007, Mother filed a request to change court order (JV-180) due to a change in circumstances regarding her employment, job training, housing and choices of associates, and alleged her continued relationship with Faith was in Faith’s best interest. The court summarily denied the request.
.26 Hearing/Adoptability Review Report
The Department’s February 2007 .26 report stated that Mother had been unable to demonstrate an understanding of how her friendship and relationship choices impacted her ability to provide for Faith’s safety and appropriate care. Mother continued to minimize her domestic violence and anger management issues. She stopped visiting with Faith for more than six weeks when Faith did not want to sit with her or be held by her, and did not aggressively participate in reunification services. As of December 2006, Mother was visiting Faith monthly, however, Faith did not view her as her mother, and instead, viewed her caregiver as her mother. Faith was in good health, was developing with no special needs and was functioning fine mentally and emotionally. Her caregiver had no concerns regarding her motor skills. Of the 21 weekly visits offered to Mother since January 2006, Mother completed 11 and missed 10, two of which were excused. In early 2006, Mother declined participating in extended weekly visits at the relative caretaker’s home. The current relative caregiver wanted to adopt Faith if parental rights were terminated. A previous Department social worker determined that placement of Faith with Mother would be detrimental because Mother had not: made significant progress in therapy; addressed her domestic violence and anger management issues; secured stable housing; successfully completed parenting classes; and maintained consistent visitation with Faith. The Department concluded there would be no detriment to Faith if Mother’s parental rights were terminated since she has not lived with her since birth and there is no parent/child bond between them.
.26 Hearing
At the April 2007 .26 hearing, Mother testified that for six months she had been working full time and residing in her own apartment and had completed medical front office training. She said that as Faith’s mother she could give Faith quality time and provide her with the best care. The Department submitted on its report and asked the court to find Faith adoptable and that none of the exceptions to section 366.26 were applicable. Mother asked the court to find that the continued beneficial relationship exception applied based on her bond with Faith and that termination of parental rights would be detrimental to Faith. The court found clear and convincing evidence that Faith would be adopted and terminated Mother’s parental rights. This timely appeal followed.
Discussion
I. The Adoptability Finding Is Supported by Substantial Evidence
Mother contends substantial evidence does not support the court’s finding that Faith was likely to be adopted because there was insufficient evidence that Faith’s relative caretaker could be approved or was eligible to adopt and there was no evidence of any other families that were interested in adopting a child with Faith’s characteristics.
When adoption is selected by the court as the permanent plan for a minor, it may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted. (§ 366.26, subd. (c)(1).) “The ‘clear and convincing’ standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. [Citation.]” (In re J. I. (2003) 108 Cal.App.4th 903, 911.) Instead, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that Faith was likely to be adopted within a reasonable time. (See In re Erik P. (2002) 104 Cal.App.4th 395, 400; Sheila S. v. Superior Court (2000) 84 Cal.App.4th 872, 880-881.) In conducting our substantial evidence review we give the juvenile court’s adoptability finding the benefit of every reasonable inference and resolve evidentiary conflicts in favor of affirmance. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)
“The issue of adoptability posed in a [.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.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) “A child’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability. [Citation.] ‘ “. . . [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.” ’ [Citation.]” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)
Mother argues that since there was insufficient evidence that Faith’s relative caretaker had applied, would be eligible, or would be approved for adoption, the likelihood of Faith’s adoptability was not established. Mother notes that the record contains no evidence of a preliminary assessment regarding the eligibility and commitment of Faith’s relative caretaker, who had been identified as a prospective adoptive parent pursuant to section 366.21, subdivision (i)(4).
Effective January 1, 2008, subdivision (i)(4) of section 366.21 was renumbered as subdivision (i)(D) with no substantive effect. (Stats. 2007, ch. 583, § 26.5.)
Mother’s primary focus on the relative caretaker/prospective adoptive parent is misplaced since the focus of the adoptability inquiry is on the minor. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) It is not necessary that the minor already be in a potential adoptive home or that there be a ready proposed adoptive parent. (Ibid.; see also § 366.26, subd. (c)(1).) However, “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. [Citation.]” (In re Sarah M., at pp. 1649-1650.)
Moreover, the suitability of a prospective adoptive family is generally irrelevant to the issue of whether the minor is likely to be adopted. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) Only when there is insufficient evidence of general adoptability must there be at least one approved family willing to adopt a child of the minor’s age, physical condition, and emotional state. (See In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.)
Adoption assessments in March and December 2005, as well as a formal adoptability review in June 2006, found Faith to be very appropriate for adoption. Despite being premature at birth and having some early health and developmental problems, by the time of the .26 hearing report Faith was in good health, did not manifest any physical, mental or emotional problems or special needs, and appeared to be developmentally on target. Her initial foster family, and later her relative caretaker, expressed a willingness to adopt her. Faith was bonded to her relative caretaker and viewed the caretaker as her mother. While this suggests Faith’s general adoptability, Mother’s assertion that Faith’s bond with her relative caretaker rendered her unlikely to be adopted by any other family is unsupported by the record and is merely speculative. We conclude that substantial evidence supports the court’s finding that Faith was likely to be adopted.
II. ICWA Notice
Mother also contends the Department failed to comply with the ICWA notice provisions. The Department concedes the error.
When the social services department has reason to know the proceeding involves an Indian child, the department must notify the Indian child’s tribe, or the BIA (if the tribe’s identity cannot be determined) of the pending proceedings, and of the right to intervene. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4.) The department’s duty is to inquire into the possibility of the child’s Indian ancestry and to act upon the information the family provides. The department is not required to conduct an extensive independent investigation or to “cast about, attempting to learn the names of possible tribal units to which to send notices[.]” (In re Levi U. (2000) 78 Cal.App.4th 191, 199.)
Section 224.2, subdivision (a), provides in relevant part: “If the court, a social worker or probation officer knows or has reason to know that an Indian child is involved, any notice sent in an Indian child custody proceeding under this code shall be sent to . . . the minor’s tribe . . . .” Section 224.2, subdivision (a)(3), provides that notice must be sent to all tribes of which the child may be a member or eligible for membership, until the court makes a determination as to which tribe is the child’s tribe. (See also In re Louis S. (2004) 117 Cal.App.4th 622, 632-633.) The notice must include the names of the child’s ancestors and other identifying information, if known, and be sent registered or certified mail, return receipt requested. (In re Karla C. (2003) 113 Cal.App.4th 166, 175-176; see § 224.2, subds. (a)(1) & (5).) The agency providing notice is required to file with the court “a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status.” (In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4; In re Karla C., supra, 113 Cal.App.4th at pp. 175-176.)
ICWA notice requirements are strictly construed. (In re Karla C., supra, 113 Cal.App.4th at p. 174.) “Deficient notice under the ICWA is usually prejudicial [citation] but not invariably so. [Citation.]” (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411.) “When proper notice is not given under the ICWA, the court’s order is voidable. [Citations.]” (In re Karla C., at p. 174.)
The Department concedes that the information provided to it, including the names of Faith’s paternal grandmother, great-grandmother and great-grandfather, was not provided to the three Cherokee tribes or the BIA in violation of the ICWA notice requirements. (See In re Jennifer A. (2002) 103 Cal.App.4th 692, 705 [notice to tribe omitted family information that seemingly was available].) The Department concedes that the omitted ancestral information may result in a different eligibility determination by the tribes and, therefore, the matter should be remanded to ensure compliance with the ICWA. The parties agree that the order terminating her parental rights must be conditionally reversed due to the Department’s failure to comply with the ICWA notice requirements. (See In re Justin S. (2007) 150 Cal.App.4th 1426, 1437-1438.)
Disposition
The order terminating Mother’s parental rights is conditionally reversed and remanded to the juvenile court with directions to order the Department to make reasonable efforts to obtain the relevant information regarding Faith’s ancestors and to provide proper notice under the ICWA. If, after proper notice, no tribe claims that Faith is an Indian child or seeks to intervene, or the responses received indicate that Faith is not an Indian child within the meaning of the ICWA, the order terminating parental rights shall be immediately reinstated. If any noticed tribe determines that Faith is an Indian child within the meaning of the ICWA and seeks to intervene, the juvenile court shall conduct further proceedings applying the appropriate provisions of the ICWA, the Welfare and Institutions Code, and the California Rules of Court.
We concur: NEEDHAM, J. STEVENS, J.
Retired Associate Justice of the Court of Appeal, First District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
Effective January 1, 2007, former rule 1439 was amended and renumbered rule 5.664. Rule 5.664 was repealed effective January 1, 2008. However, as amended January 1, 2007, certain Welfare and Institutions Code sections became part of the ICWA notice framework, most notably section 224.2. The notice requirements referred to herein, contained in section 224.2, are essentially the same in substance as those contained in former rule 1439.