Opinion
A100229.
7-15-2003
In re MARTIN H., a Person Coming Under the Juvenile Court Law. CONTRA COSTA COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. ROY H., JR., Defendant and Appellant.
Roy H., Jr. (father), appeals from the order terminating his parental rights as to his son, Martin H. He contends that: (1) there is insufficient evidence to support the trial courts finding that the Contra Costa County Department of Children and Family Services (the Department) complied with the notice provisions of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq. (ICWA)); (2) there is insufficient evidence to support the juvenile courts finding that Martin is adoptable; and (3) the court failed to consider whether adoption would be detrimental to Martins sibling relationships. We reverse the courts
order, subject to it being reinstated upon compliance with the ICWA notice requirements.
FACTUAL BACKGROUND
On December 9, 1999, the Department filed a Welfare and Institutions Code section 300 petition alleging that Martin, age 7, had multiple nonaccidental bruises on his chest, back, arms and legs, that his mother hit him with belts and shoes, and that she failed to protect him from physical abuse by her boyfriend who admitted that he "pops" the child. The petition further alleged that mother neglected the childs educational needs, that she was arrested for child endangerment in November 1987 and that her boyfriend suffered arrests for willful cruelty to a child in April 1997 and for corporal injury to a spouse or cohabitant in March and October of 1999. Similar petitions were filed regarding Martins sibling, Roy, and his half-sibling, Justin. Martin was detained and placed in foster care. The Department subsequently placed Martin with his maternal grandmother. The maternal grandmother, however, requested that Martin be removed from her care because of his destructive behaviors. On January 21, 2000, Martin was returned to his initial foster care placement. This placement was terminated on February 1, 2000 when the foster parent asked that Martin be removed.
All further statutory references are to the Welfare and Institutions Code.
On February 10, 2000, the court sustained the allegations of the petition that mother failed to protect Martin from her boyfriend, that the boyfriend admitted he "pops" the child, that the child sustained injuries that would ordinarily not be sustained except as the result of neglect or omissions of mother and that mother and her boyfriend have a history of domestic violence which Martin witnessed. The remaining allegations of the petition were dismissed. Martin and his siblings were placed in a therapeutic foster home.
Martins siblings were subsequently placed in separate foster homes.
The dispositional hearing was held on March 13, 2000. The court declared Martin a dependent child, continued his foster care placement and ordered reunification services for mother. Pursuant to section 361.5, subdivision (b)(1), the court ordered that no reunification services be provided for father because his whereabouts were unknown.
On June 16, 2000, father, who was living in Iowa, contacted the Department and asked that the status review hearing be continued so that he could attend. On September 11, 2000, counsel was appointed for father. The six-month review hearing was held on October 13, 2000. The Departments report indicated that the mother had tested positive for drugs but had entered a drug treatment program on July 31, 2000. She had recently entered a program for domestic violence and had begun individual counseling. Mother, however, was in violation of the order that there be no contact between her children and her boyfriend. The report further noted that Martin was doing well in his current placement and was very much a part of the family. Although his siblings were in separate foster homes, Martin saw Roy during his weekly visits with his mother and saw Justin once a month. The court continued reunification services for mother and ordered a paternity test for father.
The Departments report for the 12-month review hearing recommended that the court terminate reunification services for mother and order long-term foster care as a permanent plan. The report noted that mother was arrested on assault charges on November 27, 2000 and was currently incarcerated. The Department further noted that although there was a judgment establishing fathers paternity of Martin and Roy, father had not contacted the Department since August 2000 and he did not have a relationship with his children. The Department therefore recommended that no reunification plan be ordered for father. The Department also reported that Martin felt secure and happy in his placement and that his foster parents were willing to have him in their home for long-term placement.
The 12-month review hearing was held on March 6, 2001. The court ordered a permanent plan of long-term foster care. The court terminated mothers reunification services and ordered visitation for father for a minimum of one hour monthly if father was in Contra Costa County. The parties waived a section 366.26 hearing.
On September 10, 2001, the court held a six-month status review hearing pursuant to section 366. The Department reported that mother pled guilty to one count of assault with a deadly weapon and was placed on probation for three years. The Department indicated that Martin had bonded with his foster family. He had visited with his siblings monthly, but his behavior would regress following the visits. His therapist recommended that the visits occur every three months, which resulted in Martins behavior stabilizing. The court continued its permanency planning finding of long-term foster care.
In March 2002, the Department learned that Martin might be a candidate for adoption. It noted that Martin had been in his placement for two years, was very bonded with the family and that the family was committed to providing a home for Martin. The Department therefore recommended that a section 366.26 hearing be set. On April 4, 2002, the court set a section 366.26 hearing and ordered the Department to prepare an adoption assessment.
On July 15, 2002, father filed a petition to set aside the courts order terminating family reunification services and setting a section 366.26 hearing. He sought an order returning Martin to his custody or in the alternative that he be granted six more months of reunification services. The Department opposed the petition, arguing that father had been represented by counsel since September 2000 and had not earlier requested services.
The Departments report for the section 366.26 hearing indicated that Martins prospective adoptive parents were providing a warm and nurturing home for Martin and that they were committed to adopting him. The hearing was held on September 4, 2002. Father did not appear for the hearing. The adoptions social worker testified that the home study of Martins prospective adoptive family was in progress and close to completion. The foster parents fingerprints, child abuse index and DMV record were clear. They had submitted good references and a verification of employment. The prospective adoptive parents were "absolutely and firmly committed" to adopting Martin and were also committed to sibling visitation. The adoptions social worker testified that she knew of no legal impediment that would prevent the adoption home study from being approved. The remaining items of the home study to be completed were an interview with the family scheduled for September 6, one additional reference letter, and an additional visit to the home. The adoptions social worker opined that Martins relationship with his brother would not outweigh the benefit he would receive from the permanency of adoption. The court found by clear and convincing evidence that it is likely that Martin will be adopted and terminated parental rights. The court ordered fathers section 388 petition dismissed for failure to prosecute.
The Department had received two reference letters.
DISCUSSION
1. ICWA Compliance
Father contends that the juvenile court failed to secure compliance with the notice provisions of the ICWA. The Department concedes the error.
The ICWA provides the following notice requirements pertaining to dependent children who may belong to Indian tribes: "In any involuntary proceeding in a State court, where 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 request, of the pending proceedings and of their right of intervention. . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe. . . ." (25 U.S.C. § 1912(a), italics added.)
In In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, footnote 4, the court set forth the two step procedure for complying with the notice requirements of the ICWA: "First, [the Department] should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Rule 1439(f).) Second, [the Department] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status."
The Bureau of Indian Affairs [BIA] Guidelines for State Courts (44 Fed. Reg. 67584, 67588 [ § B.5 (d)] (Nov. 26 1979)) specifically require that "the original or a copy of each notice sent pursuant to this section [ § B.5, entitled "Notice Requirements"] shall be filed with the court together with any return receipts or other proof of service."
Here, the record shows that on March 2, 2000, the Department sent a letter to the Blackfoot Tribe in Browning, Montana to inquire about mothers Indian ancestry. The Department subsequently stated in its August 28, 2000 status review report that it received a letter from the tribe that the ICWA did not apply to mothers children. Although the Department lodged the March 2, 2000 letter with the court, the tribes response was not. In addition, the Department did not file return receipts or other proof of service with the court. Nor is there any indication in the record that the Department inquired of father whether the ICWA might be applicable to Martin. "The failure to comply with the notice requirements of . . . ICWA constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. [Citations.]" (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265; see also In re Jennifer A. (2002) 103 Cal.App.4th 692, 703 [court reversed dispositional order where agency failed to file notice sent to tribe and BIA with the court].)
Because the record fails to show compliance with the ICWA, we reverse the order terminating parental rights and remand this matter to the juvenile court for the limited purpose of determining whether notice was given in conformity with the ICWA. If the court determines that Martin is not an Indian child, it may reinstate its order and make any further dispositional determinations without reference to the ICWA. (In re Marinna J., supra, 90 Cal.App.4th at p. 740.)
2. Clear and Convincing Evidence of Adoptability
Father contends that the evidence is insufficient to support the juvenile courts finding that Martin is adoptable. He argues that Martin was not likely to be adopted if the current adoptive placement failed and that the home study was not yet complete.
"We review the factual basis of a termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence. [Citation.]" (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) In assessing a claim of insufficiency of the evidence, we review the record in the light most favorable to the juvenile courts findings, and we draw all inferences from the evidence that support the courts determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.) " `The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent "waiting in the wings." [Citations.] " (In re Lukas B., supra, 79 Cal.App.4th at p. 1154, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)
Here, the record shows that Martin had lived with his prospective adoptive family for two years and was very bonded with the family. While he had some behavioral problems at the beginning of the placement, his behavior improved and his prospective parents became very committed to him. The adoptions social worker testified that the adoption home study was close to completion, that the prospective parents were providing a warm and nurturing home for Martin and that she knew of no legal impediment that would prevent the home study from being approved. In light of this record, the evidence leaves no substantial doubt that Martin is likely to be adopted. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205.)
This case is unlike In re Jayson T. (2002) 97 Cal.App.4th 75, cited by father. There, the adoptive placement of two boys failed during the pendency of the appeal of the order terminating parental rights. (Id. at p. 77.) There was also evidence that one of the boys possibly suffered from reactive attachment disorder that might affect his general adoptability. (Id. at p. 82.) Given these facts, the Court of Appeal reversed the courts order and remanded the case for the juvenile court to reconsider the childrens adoptability. (Id. at pp. 78, 91.) Here, father has not raised any issues concerning postjudgment developments that might cast doubt on Martins adoptability. Since the adoptability finding here was based on substantial evidence that it was likely Martin would be adopted, we affirm the courts order.
3. Sibling Relationship Exception
Section 366.26, subdivision (c)(1)(E) provides for an exception to the termination of parental rights when: "There would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (See In re L. Y. L. (2002) 101 Cal.App.4th 942, 947-948.)
Under section 366.26, subdivision (c)(1)(E), the court must first determine whether termination of parental rights would substantially interfere with the sibling relationship, and if so, the court must then weigh the childs best interest in continuing that relationship against the benefit of adoption. (In re L. Y. L. , supra, 101 Cal.App.4th at pp. 951-952.) The parent bears the burden of showing the existence of a significant sibling relationship, the severance of which would be detrimental to the child. (Id. at p. 952.)
Here, at the section 366.26 hearing, the Department reported that Martin visited with his brother Roy nine months earlier in December 2001. The adoptions social worker testified that a visit was currently pending between Martin and his two siblings and that there was a court order for quarterly visits. She opined that Martins relationship with his siblings would not outweigh the benefit he might receive from the permanency of adoption. She further testified that the prospective adoptive mother was aware of the existing order for quarterly visits, that she was committed to sibling visitation and was cooperating with the Department in scheduling visits.
The evidence thus supports the conclusion that Martins relationship with his siblings will continue after his adoption and that the termination of parental rights will not substantially interfere with it. Finally, the benefits of the permanence of adoption for Martin far outweigh any interference with his sibling relationships that might occur. Substantial evidence supports the juvenile courts finding.
DISPOSITION
The order is reversed, subject to reinstatement upon compliance with the ICWA notice requirements.
We concur: Kay, 16 P. J., and Sepulveda, J.