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In re G.H.

California Court of Appeals, Third District, El Dorado
Sep 23, 2008
No. C058693 (Cal. Ct. App. Sep. 23, 2008)

Opinion


In re G. H., a Person Coming Under the Juvenile Court Law. EL DORADO COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent, v. LORI H., Defendant and Appellant. C058693 California Court of Appeal, Third District, El Dorado September 23, 2008

NOT TO BE PUBLISHED

Super. Ct. No. SDP20060031

ROBIE, J.

Lori H., mother of the minor, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant contends: 1) there is insufficient evidence the minor is likely to be adopted; 2) she was denied due process because she did not receive notice of the continued selection and implementation hearing; and 3) the court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.). We reverse.

All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

FACTS

The Department of Human Services (the department) filed a petition in August 2006 to declare minors G., age five, and L., age four, dependents due to appellant’s neglect of the medical care necessary to maintain the well-being of G., who was diagnosed with cerebral palsy.

L. was the subject of a prior appeal. In our prior opinion in case No. C057852, filed June 17, 2008, this court ordered a limited reversal of the order terminating appellant’s parental rights as to L. to allow compliance with the ICWA. This appeal only deals with G.

After attempts to maintain the minors in appellant’s home, the minors were removed and the court adopted a reunification plan. The minors were placed separately due to G.’s need for foster parents who had experience with special needs children. The diagnosis for the condition responsible for G.’s delays was later changed to fetal alcohol syndrome.

Appellant claimed Cherokee heritage through the maternal great-grandfather. Notice of the proceedings was mailed to each of the three federally recognized Cherokee tribes although the ancestor information in the notice did not agree with that provided by appellant. Corrected notices were subsequently sent in November 2006 and in March 2007. In a status review report filed in April 2007, the department reported it received a letter from the Eastern Band of Cherokee Indians that the minors were not Indian children with respect to that tribe. The report also stated that in December 2006, the department received a letter from the Cherokee Nation seeking additional information. Because the mother had been out of contact, no further information was provided to the tribe, but the department reported that it would provide further information if it became available. Copies of these letters do not appear in the record; however, there is a later letter from the Cherokee Nation, which still lacked the maternal grandmother’s birth date and contained inaccurate information about the maternal grandfather. This letter stated the minors would not be considered Indian children based upon the information provided. The department relied upon this letter in a later report.

Despite intensive services, appellant failed to comply with the elements of her reunification plan. The court terminated services in August 2007 and set a section 366.26 hearing.

The report for the section 366.26 hearing stated that six-year-old G. still required a G-tube for morning feeding and had some difficulty drinking liquids. He was on medication for hyperactivity and impulse control. G. remained severely developmentally delayed and was unable to speak. An addendum stated that a potential adoptive home had been located for G. but that a continuance was needed to explore the placement.

At the hearing, the court found a permanent plan of adoption was the goal for G. and continued the case for home finding. After the court selected a date for the continued hearing, appellant became ill and left the courtroom. The court further found L. was likely to be adopted and terminated appellant’s parental rights as to him in her absence. Upon her return to the courtroom, the court advised her of her appeal rights.

A second addendum, filed February 2008, stated G. was placed in a foster/adoptive home with a single parent who had fostered and adopted other disabled children, had extensive experience with delayed children, and was a special education teacher. G. was doing well in her care and had not needed to use the G-tube because G. was eating well and taking medication orally. Appellant had visited sporadically in 2007, attending only 8 of 22 possible visits. The assessment concluded G. was adoptable and there was a family who wanted to provide the permanence G. needed. The assessment recommended termination of parental rights and a permanent plan of adoption.

The continued selection and implementation hearing for G. was held on the date previously scheduled. Appellant was not present. The court adopted the recommended findings and orders, terminating appellant’s parental rights and freeing G. for adoption.

DISCUSSION

I

Evidence Of Adoptability

Appellant contends there was insufficient evidence the minor was likely to be adopted. She argues the placement in the potential adoptive home was very recent and the court had not ascertained that the home could meet the minor’s special needs on a long-term basis.

“If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption.” (§ 366.26, subd. (c)(1).) “[T]here must be convincing evidence of the likelihood that the adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)

Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Thus, the existence or suitability of a prospective adoptive family generally is not relevant to this issue. (Ibid.; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) However, if the characteristics of the child make it so difficult to find a family willing to adopt the child that the child is likely to be adopted only if prospective adoptive parents are willing to do so, an inquiry into the existence of a legal impediment to adoption by the prospective adoptive parents may be relevant at the section 366.26 hearing. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; Fam. Code, § 8601 et seq.) “General suitability to adopt . . . does not constitute a legal impediment to adoption.” (In re Scott M., at p. 844.) Absent a legal impediment, the fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

In the original assessment, the social worker noted G. was showing improvement in all areas and was hopeful an adoptive placement would be found. An addendum filed just before the first hearing recognized G.’s continuing status as difficult to place but informed the court that a potential adoptive family had already been located. The case was continued briefly to explore this adoptive placement.

By the second hearing, G. had been placed in the prospective adoptive home for a month and the foster/adoptive parent had been dealing with G.’s special needs. The foster/adoptive parent had prior experience with children who had developmental delays and physical handicaps and had fostered and adopted other disabled children. The foster/adoptive parent was in contact with G.’s doctor and G. was doing well in her care. There was no evidence of any legal impediment to adoption. The juvenile court could conclude there was clear and convincing evidence G. was likely to be adopted in a reasonable time.

Appellant contends the assessment contained only vague and general information and lacked any specific facts relating to the foster/adoptive parent’s plans to meet potential problems or to her precise abilities to meet G.’s special needs. Any lack of specific information in the addendum on the adoptive placement, the adoptive parent’s future contingency plans, or her ability to meet G.’s needs goes only to the weight of the evidence that the minor will be adopted by this family. (In re Crystal J. (1993) 12 Cal.App.4th 407, 413.) Substantial evidence supports the juvenile court’s finding G. was likely to be adopted within a reasonable time. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.)

II

Proceeding In Absence Of Appellant

Appellant contends that due to the incident during the first section 366.26 hearing when she became ill, left the courtroom, and returned, she was denied due process because she was not given notice of the continued date of the hearing. Appellant argues she was not present when the date was set and no notice was subsequently mailed to her. Appellant’s view of the record is wrong.

Until parental rights are terminated, parents are entitled as a matter of due process and statute, to notice of the juvenile proceedings. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106; § 294.) Notice must be “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” (Mullane v. Central Hanover B. & T. Co. (1950) 339 U.S. 306, 314 [94 L.Ed. 865, 873].) If a parent is properly noticed of the original hearing, and is present when the court continues the hearing to a new date, further notice is not required. (In re Malcolm D. (1996) 42 Cal.App.4th 904, 913.) Even if the parent does not appear, renotice pursuant to the original requirements of section 294 is not necessary to satisfy due process. (In re Phillip F. (2000) 78 Cal.App.4th 250, 258.) Notice of the continued hearing may be “by any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing.” (§ 294, subd. (d).) Thus, actual notice to a parent who is present suffices. (In re Phillip F., at p. 259.)

Appellant was properly noticed of the original section 366.26 hearing pursuant to section 294 and was present or otherwise properly notified of the dates when the hearing was continued to January 2, 2008. Both the reporter’s transcript and the minute order in the clerk’s transcript of that hearing make it clear that a new hearing date for G.’s continued section 366.26 hearing was selected before appellant left the courtroom due to illness. Appellant was present in court at the time the date was selected and had actual notice of the continued date. She was not denied due process.

III

Compliance With The ICWA

Appellant contends the department failed to comply with the notice requirements of the ICWA in that it failed to properly discharge its duty of inquiry. Respondent concedes the issue.

This issue was raised in the prior appeal, case No. C057852. We accepted respondent’s concession of this issue in that case and remanded for further ICWA proceedings. For the same reasons expressed in the prior opinion, we again accept respondent’s concession and reverse for the limited purpose of allowing compliance with the ICWA.

DISPOSITION

The orders terminating parental rights are reversed and the matter is remanded for the limited purpose of determining whether the department has complied with the inquiry and notice provisions of the ICWA and whether the ICWA applies in this case. If, after proper inquiry, the juvenile court determines that the tribes were properly noticed with all available information and there either was no response or the tribe(s) determined that the minor was not an Indian child, the orders shall be reinstated. However, if, after new notice, any tribe determines the minor is an Indian child, the juvenile court is ordered to conduct a new section 366.26 hearing in conformance with all provisions of the ICWA.

We concur: MORRISON, Acting P.J., CANTIL-SAKAUYE, J.


Summaries of

In re G.H.

California Court of Appeals, Third District, El Dorado
Sep 23, 2008
No. C058693 (Cal. Ct. App. Sep. 23, 2008)
Case details for

In re G.H.

Case Details

Full title:EL DORADO COUNTY DEPARTMENT OF HUMAN SERVICES, Plaintiff and Respondent…

Court:California Court of Appeals, Third District, El Dorado

Date published: Sep 23, 2008

Citations

No. C058693 (Cal. Ct. App. Sep. 23, 2008)