Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County Nos. J210273 & SWJ001144, Wilfred J. Schneider, Jr., Judge.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Jacqueline Carey-Wilson, Deputy County Counsel, for Plaintiff and Respondent.
Michael D. Randall, under appointment by the Court of Appeal, for Minor.
OPINION
King J.
J.B. (Father) appeals from an order terminating his parental rights concerning his son, J.H., pursuant to section 366.26 of the Welfare and Institutions Code. He contends the court erred by: (1) finding that J.H. is adoptable, and (2) failing to comply with the inquiry and notice requirements of the Indian Child Welfare Act (ICWA) and related state law. Respondent, San Bernardino County Department of Children’s Services (DCS), disputes these contentions. Because there is substantial evidence to support the court’s finding of adoptability and the court complied with its ICWA obligations, we affirm the court’s order.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
Appellate counsel for J.H. filed a brief with this court stating that he joins in the brief filed by DCS and requests that we affirm the trial court’s orders.
I. SUMMARY OF FACTS AND PROCEDURAL HISTORY
J.H. was detained by Riverside County social workers in July 2006 when he was four years old. The detention was based primarily upon allegations that his mother: engaged in drug abuse, prostitution, and other criminal activity; left J.H. unattended; was transient; and was involved in domestic violence incidents in J.H.’s presence. Father had been incarcerated for much of J.H.’s life and did not provide the child with any support. Additionally, J.H. had attention deficit hyperactivity disorder (ADHD), was aggressive toward other children, and was “over sexualized,” as evidenced by J.H.’s “touching himself,” “masturbating in front of people,” and touching women inappropriately.
Father had been imprisoned for, among other crimes, raping J.H.’s mother.
A detention report states that a social worker spoke with the mother regarding Native American ancestry on July 18, 2006. The mother told the social worker neither she nor J.H. had any Native American ancestry or tribal affiliation and that she was not aware that Father had any Native American ancestry or tribal affiliation.
On July 19, 2006, the Riverside County Department of Public Social Services (DPSS) filed a petition pursuant to section 300. Among other allegations, DPSS alleged that the parents failed to adequately supervise or protect J.H., failed to provide J.H. with adequate food, clothing, shelter, or medical treatment, and failed to provide regular care for J.H. due to a parent’s mental illness, developmental disability, or substance abuse.
At the detention hearing on July 20, 2006, the mother filed a form JV-130 (Parental Notification of Indian Status), stating that she “may have Indian ancestry” via the maternal grandmother and maternal grandfather. The court inquired as follows:
“THE COURT: . . . [¶] . . . [¶] You put that you may have Indian blood. What tribe?
“THE MOTHER: I have no idea, but my sister was talking about that we have Indian in us.
“THE COURT: But no idea who would have that information?
“THE MOTHER: I can see if my guardian has it or
“THE COURT: You have lost contact with your natural family?
“THE MOTHER: My real family is deceased.
“THE COURT: All of them?
“THE MOTHER: As far as the ones that I know, yes.
“THE COURT: No way you could get the information?
“THE MOTHER: My sister.
“THE COURT: Okay. I’ll reserve until next time. But would you ask your sister because I need something more specific than somebody said I might have Indian blood. I need to know what tribe, when, which side of the family, that kind of stuff.
“THE MOTHER: Okay.
“THE COURT: You can let us know when you come back on August 10th.”
In a jurisdictional/dispositional report filed on August 10, 2006, a social worker reported that, based upon the July 18, 2006, conversation with the mother described above, ICWA does not apply. Father’s whereabouts were unknown. The report described J.H. as “academically behind where his development should be. At the age of four he is acting out sexually and is in need of psychotropic medication, both of which may be a direct result of his mother’s lack of appropriate care for his needs.”
At the jurisdictional/dispositional hearing, the court found true the allegations of the petition, as amended, and declared J.H. to be a dependent of the court. The court ordered that reunification services be provided to mother, and denied services to Father because he had been convicted of a violent felony. The court approved of the agency’s case plan, which provided for a psychological evaluation of J.H. The court then ordered that the case be transferred to San Bernardino County, where mother lived.
At the first court hearing in San Bernardino, the mother was asked about possible Indian heritage. The mother replied: “The person who would know, which is my sister[,] which is my blood sister[,] would only know this information and we never speak. She’s mentioned it before but I’m not for sure myself whether I do or don’t. So my mom, my guardian, said that I need to get in contact with her but she’s not for sure either.” Upon further inquiry, the mother said that she did not know the whereabouts of her sister. Because the mother had been adopted, the court suggested that the social worker check the mother’s dependency records to see if the records disclose any Indian ancestry. The court set a hearing date of October 31, 2006, to address the mother’s case plan and to determine whether the records of the mother’s dependency case held information regarding her Indian heritage.
In an interim report prepared for the October 31, 2006, hearing, the social worker stated that she had reviewed the mother’s dependency court records and found no documentation or ruling that would support a finding that the mother is a Native American Indian. The social worker also reported a conversation she had with the mother’s sister. The sister told the social worker: “‘I never said she [i.e., the mother] was Indian. It was just I didn’t know who her father was, and didn’t know’ what his ancestry consisted of.” The sister further explained that she never suspected that the mother’s father was Native American, had never heard that anyone suspected or believed this, and knew of no Native American Indian reservation in or near where the mother’s father and paternal grandmother lived. The sister “added that she simply ‘couldn’t’ rule this out, so [she] told the screening social worker ‘I don’t know, maybe’ [the mother] possessed some Native American Indian ancestry, without any foundation.” The social worker concluded: “As [the mother’s] father and paternal grandmother are deceased and there are no known paternal relatives living, the undersigned [social worker] is at a loss to support such a claim. There is no evidence presently known or suspected that supports that this child or his mother are of Native American Indian ancestry.”
At the October 31, 2006, hearing, the court again addressed the possibility of Indian ancestry:
“THE COURT: [Mother], what information, if any, do you have about native American Indian heritage in your family?
“THE MOTHER: My sister had mentioned it about me having native American. We didn’t talk too much about it, so I really
“THE COURT: Okay. Apparently your sister said that she never said you were Indian, she just didn’t know who your father was and didn’t know rather that individual possibly might have Indian heritage. But there is no name, no indication of
“THE MOTHER: Yes. My grandmother, you know, my mother’s mother or father’s mother said there was native American heritage in their family.
“THE COURT: Do you have any specific information about either of your parents having native American Indian heritage?
“THE MOTHER: Just from what my sister told me we have some sort of Indian in us.
“THE COURT: My understanding is that your sister now says that that’s not accurate, that it was just a vague possibility, that she can’t say with any certainty there was but she had no concrete information to support that possible claim. And you don’t have any other information either?
“THE MOTHER: I don’t.”
Upon further inquiry, the mother stated that her parents are deceased and she does not know if her father’s mother is deceased, but she has lost contact with her. She did not know the father’s mother’s name, but said that she “can get that.”
The court then told the mother: “It does appear at this point in time that the reference to possible Indian heritage is just speculative. But I am going to issue an order, [mother], that as the case proceeds if you learn any information—and you should make inquiry with any family members that are available to you—but if you learn anything, any more details so that you gain additional information, you’re ordered to notify the social worker immediately. And from time to time as you come to court I may ask you again if you’ve learned anything between the last court date and today.” The court then found that “since it appears to be just speculative at this time based on the information before the Court and the inquiry made today, the [ICWA] does not apply.”
In February 2007, DCS applied to the court for an order authorizing psychotropic medication for J.H. The application recited that J.H. had been diagnosed with ADHD and “is having lots of difficulties following orders at home and school, he has poor impulse control and poor attention span, he is out of control in school[.] He runs away from the teacher and won[’]t listen, foster parent is getting many complaints from school, he needs medication so he can stay in school.” Following a hearing, the court denied the application. Instead, the court ordered that J.H. be provided with individual therapy.
In October 2007, DCS again applied for an order authorizing psychotropic medication for J.H. The applicant stated that J.H. has had “poor results” in therapy, had problems in school and at home, difficulty following teachers’ orders, is hyperactive, has a poor attention span and behavior problems, and is “aggressive, fidgety, [and] restless.” The court granted this application.
On January 11, 2008, the court terminated services for the mother and set a hearing to be held pursuant to section 366.26. Father’s whereabouts remained unknown.
On February 15, 2008, DCS located Father; he was residing in “Chino Prison.” He was served with notice of the section 366.26 hearing.
In May 2008, DCS filed an adoption assessment and a section 366.26 report, in which the agency recommended that parental rights be terminated and J.H. be placed for adoption. In June 2008, DCS filed an addendum report, in which it reaffirmed this recommendation and stated that an adoptive family has been identified for J.H. The prospective adoptive family is, DCS reported, “a good match for [J.H.]”
Father appeared, for the first time, at the section 366.26 hearing on July 30, 2008. He submitted an “ICWA 020” form indicating that he has no Indian heritage. The court found that ICWA did not apply.
DCS offered, and the court received into evidence, the section 366.26 report, the adoption assessment, and the June 2008 addendum report. Counsel for Father stated that he had no affirmative evidence to offer, but objected to the recommendation to terminate parental rights. The mother also objected to the recommendation and offered no evidence. No one objected to the adequacy of the adoption assessment.
The court found that there was clear and convincing evidence that it is likely that J.H. will be adopted, then terminated parental rights.
II. ANALYSIS
A. Adoptability
In order for a juvenile court to terminate parental rights, it must find by clear and convincing evidence that the child will likely be adopted. (§ 366.26, subd. (c)(1).) We will uphold the juvenile court’s finding if the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that the child was likely to be adopted. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153-1154.) “‘“‘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. [Citations.]”’ [Citations.]” (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.) Still, we “‘presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order.’ [Citation.]” (In re Josue G. (2003) 106 Cal.App.4th 725, 732.)
“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.]” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) “[T]here must be convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]” (Ibid.) It is not necessary that the child already be placed in a preadoptive home, or that a proposed adoptive parent be waiting. (§ 366.26, subd. (c)(1); In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) 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. [Citation.]” (In re Sarah M., supra, at pp. 1649-1650.)
Preliminarily, we note that to the extent that Father is asserting that the adoption assessment was inadequate or failed to comply with statutory requirements, the arguments have been forfeited for failing to raise them below. (See In re Brian P., supra, 99 Cal.App.4th at p. 623; In re Urayna L. (1999) 75 Cal.App.4th 883, 886.) To the extent that their arguments address the sufficiency of the evidence to support adoptability, however, the arguments are not forfeited. (In re Brian P., supra, at p. 623; In re Joshua G. (2005) 129 Cal.App.4th 189, 200, fn. 12.)
At the section 366.26 hearing, the court had before it the adoption assessment prepared in May 2008. According to this report: J.H. was six years old; he has “a very charming personality and is generally a very out-going little boy”; he is “generally healthy” and there “are no medical or dental concerns”; “[h]e is in a special education classroom for the emotionally disturbed due to aggressive behaviors”; he had been “in trouble daily at school for aggression and defiance,” including “kicking, hitting, spitting and throwing rocks”; he “seeks negative attention” in school, but “generally does not have the same behavioral problems at home”; he responds well when the foster parent tells him of the consequences for various behaviors; although he takes medication for ADHD, “the foster mother does not see any significant improvement [in] [J.H.’s] behavior from before he was medicated”; “[i]n other ways, [J.H.] is developmentally on target”; he “is a very active child and especially enjoys playing the drums and the tambourine”; he “likes to be helpful and pleasing to his foster mother”; he “is able to carry on a conversation with ease and presents as a very smart and inquisitive little guy”; J.H. “will reciprocate affection shown to him”; and “[h]e is a very loveable little boy.”
The assessment concludes: J.H. “is an appropriate child to be placed in an adoptive home. . . . [He] has behaviors that make finding an adoptive home challenging, but the undersigned [social worker] is confident that a suitable home will be found.”
The court also reviewed the section 366.26 report and the June 2008 addendum report. In the section 366.26 report, DCS reported that J.H. is “meeting many of his developmental milestones”; he is “an attractive, active and alert little boy suffering no remarkable physical delays or handicaps”; his “vocabulary exceeds that of his peers” and he is at “ease in conversation, with peers or adults alike”; J.H. is inquisitive; and he has mastered age appropriate chores. His “primary challenge revolves around aggression toward others and impulsivity. [He] has continued to exhibit aggression (hitting, kicking, punching and yelling) toward children even when unprovoked, and adults, when [J.H.] is in conflict with their authority.”
Regarding his education, the report states that he is in a class for emotionally disturbed children due to behavior and emotional issues displayed when in the classroom or contact with peers on the playground. He finds it “very difficult, if not impossible[,] to control his impulse to hit, kick or threaten other children.” He is taking Clonidine for intermittent explosive disorder. One physician “suspects ‘that he may be bi-polar.’” A therapist reported that J.H. is “‘very angry at his mother for what she has done’”; however, J.H. is “‘quite lovable’ and provided that he is placed in a loving, supportive and ‘very patient’ adoptive family, [J.H.] ‘could do well.’”
The addendum report identified and provided an assessment of the prospective adoptive parents. These parents have another adopted child who “has many similarities with [J.H.] in terms of behavior, need for psychotropic medication and the special education needs.” They “felt that they were the best suited to adopt [J.H.] because they have dealt with a special needs adoption and have done well. Time and hands-on experience with their [adopted son] have proven them to be loving, nurturing and stable parents who challenge [their adopted son] to live up to his potential. . . . They have educated themselves on the struggles they would likely face. This is a family who does not seem easily rattled by special needs issues.” The social worker concluded that J.H. “is an adoptable child and he is matched to an adoptive family who seems well equipped to parent [J.H.]”
Like J.H., the prospective adoptive father is of Caucasian and African-American descent.
No one offered any other evidence at the hearing.
These reports provide ample evidence to support the court’s adoptability finding. Although J.H. appears to have significant emotional and behavioral issues, the evidence indicates that he is otherwise developmentally on target, an adoptable age, physically healthy, “cute,” and “very smart and inquisitive.” Significantly, a prospective adoptive family has been found for J.H. Such evidence is more than sufficient to support the court’s finding of adoptability.
Father contends that J.H.’s “behavioral problems should have precluded a finding of adoptability.” Father interprets the reports of J.H.’s behavior over the course of the proceedings as presenting “a picture of a very dark, troubled child that was capable of hurting himself and others—not a cute, lonely child in need of siblings.” Indeed, there are numerous reports of aggressive and disturbing behavior by J.H. over the course of the dependency proceeding. He would kick, hit, spit, and throw rocks at people. He received almost daily reports of problem behavior at school. He once wrapped a school bus seat belt around his neck and told his foster mother that he wanted to die. Father also points to the fact that J.H.’s foster caregivers were unwilling to adopt him because of his behavior problems.
Father’s arguments essentially call upon us to reweigh the evidence and adopt Father’s interpretation of the facts over the court’s interpretation. The evidence is indeed conflicting: J.H. is both emotionally troubled and aggressive toward others; yet he has a “charming personality,” is helpful and pleasing to his foster mother, “very smart and inquisitive,” and a “very loveable little boy.” Under our standard of review, we cannot reweigh the evidence; we must review all conflicts in support of the court’s order and draw all reasonable inferences in favor of the finding of adoptability. (See In re Josue G., supra, 106 Cal.App.4th at p. 732.) Viewed in this light, the court could have reasonably concluded that, despite J.H.’s emotional and behavioral problems, he is, as the social worker reported, a cute, healthy, smart, outgoing, and loveable boy. Regarding the unwillingness of the foster care parents to adopt J.H., the court could have given this fact little weight in light of the fact that the child’s prospective adoptive parents “expressed an eagerness to have [J.H.] join their family.”
Based on our review of the record, we hold that there is substantial evidence in the record to support the court’s adoptability finding.
B. ICWA
Father contends that the court erred in failing to comply with the inquiry and notice requirements of ICWA. We disagree.
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards in juvenile dependency cases. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421; In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344.) ICWA defines an Indian child as any unmarried person who is under age 18 and is either: (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C.A. § 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 Indian child’s tribe notice of the pending proceedings and its right to intervene. (25 U.S.C.A. § 1912(a); In re S.B. (2005) 130 Cal.App.4th 1148, 1157.)
ICWA itself does not expressly impose any duty to inquire as to Indian ancestry. Neither do the controlling federal regulations. (See 25 C.F.R. § 23.11(a) (1994).) However, ICWA also 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.A. § 1921.) Consistent with this provision, California law imposes on county welfare departments and the juvenile court “an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300 . . . is to be, or has been, filed is or may be an Indian child in all dependency proceedings . . . if the child is at risk of entering foster care or is in foster care.” (Welf. & Inst. Code, § 224.3, subd. (a).) This statute became effective in 2007, while this proceeding was pending. Prior to the enactment of this statute, and throughout the pendency of this case, a substantially similar obligation was imposed by rule of court. (See former Cal. Rules of Court, rule 5.481(a) [effective Jan. 1, 2008]; Id., former rule 5.664(d) [effective Jan. 1, 2007]; Id., former rule 1439(d) [in effect in 2006].)
All further references to rules are to the California Rules of Court.
The record reveals that the court and social workers made sincere and thorough efforts to inquire as to the possibility of Indian heritage. At the mother’s first appearance she filed a form JV-130 (Parental Notification of Indian Status) as mandated by the applicable rule in place at that time. (See former rule 1439(d)(3).) After questioning the mother at three different hearings, it is clear that the mother had no credible or specific information concerning possible Indian ancestry. She initially indicated that she believed she may have Indian ancestry based upon something her sister told her. Her sister, however, told the social worker that she did not suspect that the mother’s father might have been Native American; she simply could not rule out that possibility. At a subsequent hearing, the mother was again questioned about her assertion of Indian heritage, but could point only to information provided by her sister. Her parents are deceased. She has lost contact with her father’s mother and does not know if she is deceased. She said she does not know her father’s mother’s name, but that she “can get that.” She was ordered to notify the social worker immediately if she obtains any further information regarding possible Indian ancestry. The record does not disclose that she ever obtained further information. At the court’s request, the social worker reviewed the mother’s childhood dependency records, which revealed no evidence of Indian ancestry. Finally, at Father’s first appearance in the case, he submitted his Parental Notification of Indian Status form (then designated ICWA 020), indicating that he has no Indian ancestry. (See rule 5.481(a)(2).) Based on these facts, we conclude that the court and social worker fully satisfied their duties of inquiry as to J.H.’s possible Indian ancestry.
Father further contends that the court and social worker failed to send ICWA notice to either a tribe or the Bureau of Indian Affairs. The argument is without merit. Notice of juvenile dependency proceedings must be sent to an Indian child’s tribe when a court knows or has reason to know that an Indian child is or may be involved in a juvenile dependency proceeding. (25 U.S.C.A. § 1912(a); rule 5.481(b)(1); former rule 5.664(f).) If the child’s tribe is unknown, the notice must be given to the Bureau of Indian Affairs. (25 U.S.C.A. § 1912(a); 25 C.F.R. § 23.11 (2003); In re Daniel M. (2003) 110 Cal.App.4th 703, 707.) Here, the record discloses no basis by which the court could have known or have had a reason for knowing that J.H. was or might have been an Indian child. As shown above, the mother’s assertion of possible Indian ancestry was based entirely on her sister’s unfounded speculation. Such vague and speculative information does not trigger the ICWA notice requirement. (See In re O.K. (2003) 106 Cal.App.4th 152, 157.)
III. DISPOSITION
The order appealed from is affirmed.
We concur: Richli Acting P.J., Gaut J.