Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. JD223830, JD223833, JD226233
NICHOLSON, J.
Appellant J.A. (mother) is the mother of M.G. (two and a half years old), J.T. (seven and a half years old) and Mason G. (eight months old) (collectively referred to as the minors), as well as S.G. and Je.T., both subjects of separate juvenile dependency proceedings. Appellant Bernard T. is the father of Je.T. and J.T.; Steven G. is the father of S.G., M.G., and Mason G.
Because the minors were detained on different dates, the ages reflected herein coincide with the ages of the minors at the time parental rights were terminated in April 2008.
We grant the request filed by respondent Sacramento County Department of Health and Human Services (the Department) to take judicial notice of our opinion filed on October 17, 2008. in appellate case No. C057677 related to S.G. and Je.T.
Appellants appeal from an order of the juvenile court terminating parental rights as to M.G.. J.T. and Mason G. (Welf. & Inst. Code, §§ 366.26, 395.) Appellant mother makes the following contentions: (1) the Department failed to provide notice in accordance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.) as to either father; (2) the evidence was insufficient to support the juvenile court’s finding that termination of parental rights would not substantially interfere with the minors’ sibling relationships; (3) the juvenile court failed to order a bonding study between the minors prior to terminating parental rights, thus violating due process; and (4) the evidence was insufficient to support the juvenile court’s finding that J.T. and M.G. were adoptable. Appellant Bernard T. joins in those claims.
Further undesignated statutory references are to the Welfare and Institutions Code.
Bernard T. appeals only from the order terminating parental rights as to J.T.
We vacate the juvenile court’s order terminating parental rights as to J.T. and remand the matter to the juvenile court for proper compliance with ICWA. We affirm the juvenile court’s orders as to M.G. and Mason G.
FACTUAL AND PROCEDURAL BACKGROUND
In February 2006, the Department filed juvenile dependency petitions as to J.T., M.G., S.G. and Je.T. alleging failure to protect as a result of mother’s and Steven G.’s continued substance abuse and failure to rehabilitate, and mother permitting unsupervised contact between some of the minors and Steven G. with knowledge of Steven G.’s use of marijuana and cocaine in the minors’ presence.
Neither mother nor Steven G. attended the initial hearing in March 2006. The court made no findings related to ICWA due to the absence of the parents.
The parents were again absent from the jurisdictional hearing on April 7, 2006. M.G., J.T., S.G. and Je.T. were placed into protective custody due to mother’s and Steven G.’s noncompliance with their respective drug treatment programs.
Mother and Steven G. were present at the detention hearing on April 12, 2006. The Department filed first amended petitions adding allegations regarding mother’s and Steven G.’s continued failure to participate in treatment or utilize services designed to help ameliorate the risk of neglect to the minors and their siblings. The court found continued placement of the minors in mother’s home was contrary to the minors’ welfare and ordered emergency detention pending further hearing.
Mother and Steven G. were not present at the continued hearing the following day. The court made no findings regarding ICWA, noting only that further inquiry would be made “when the parents come forward.” The court issued a general detention order as to M.G., J.T., S.G. and Je.T., and ordered that reunification services be provided to the parents. M.G., J.T., S.G. and Je.T. were placed together in the same foster home, and maintained weekly visits with their siblings and half siblings.
The first hearing contained in the reporter’s transcript is a six-month review hearing on November 3, 2006. It is not clear whether prior hearings were not transcribed, or were transcribed but simply not included as part of the record.
Mother and Steven G. were not present for the April 2006 jurisdictional hearing, and their appearance at subsequent hearings was seldom and sporadic. The May 2006 jurisdiction report concluded that ICWA was not applicable.
Bernard T. appeared for the first time at the June 2006, jurisdictional hearing. The court ordered him to complete and return the Indian Ancestry Questionnaire form to the Department, and ordered the Department to provide the “Choctaw tribes” with notice of the dependency proceedings. The record includes the following: a completed Parental Notification of Indian Status form indicating Bernard T. may be eligible for membership in the “Chaktau” tribe; a completed Indian Ancestry Questionnaire form marked “received” by the Department on June 28, 2006; and a Notice of Involuntary Child Custody Proceedings for an Indian Child (form JV-135) which was mailed to the Bureau of Indian Affairs (BIA) and three Choctaw Indian tribes.
The Department filed second amended petitions alleging mother’s and Steven G.’s continued substance abuse and failure to submit to drug testing or avail themselves of reunification services provided to them.
The parents were not present at the August 4, 2006, hearing. In their absence, the court sustained the allegations in the second amended petitions, adjudged the M.G. and J.T. dependent children of the court (§ 300, subd. (b)), and continued out-of-home placement.
Although originally placed together, continued inappropriate behavior and touching between J.T. and his sister, Je.T., led to the removal of J.T. and M.G., who were placed together in another home. J.T. and M.G. were both adjusting well to their new placement and bonding with their foster family. Aside from minor academic problems associated with poor past performance and attendance in kindergarten, J.T. was reportedly healthy and developmentally on target. M.G. was developmentally on target as well, and relatively healthy after having undergone hernia surgery, followed by another surgery to remove an abscess resulting from an infection.
The May 2007 permanency review report noted J.T. was healthy, developmentally on target and continuing to interact well with his foster family. He was having some difficulty listening to directions and controlling his emotional outbursts in school; however, he had shown some recent improvement in his behavior. J.T.’s problems in language and writing skills were being addressed by in-class tutoring, and his foster family, social worker and teacher were all helping him with consistency in turning his homework in on time. The foster agency quarterly report said J.T. “has been digressing in the home and at school emotionally” and “has emotional outbursts at school, screaming things such as ‘I don’t care’ and ‘I hate this.’” J.T. says he “hates being a foster kid and feels that no one loves him.” In response to those recent behavioral problems, J.T. was referred to counseling to address inappropriate conduct, as well as his anxiety regarding if and when he would return home and whether or not he would be adopted. It was reported M.G. was developmentally on target, well-adjusted to his placement and bonded with his foster family. He was generally healthy, but continued to suffer from ear infections and congestion for which was receiving regular medical care and prescription medication.
Appellants and Steven G. failed to reunify and the court terminated services on May 1, 2007. The court determined M.G., J.T., S.G. and Je.T. were all adoptable and identified adoption as the appropriate permanent plan. At the joint request of counsel for appellant mother and Steven G., the juvenile court ordered a bonding study between the minors and their siblings and half siblings and parental bonding studies as to the bond between the minors and appellant mother, and the bond between the M.G. and Steven G.
A June 2007 progress report stated J.T. was “making noticeable progress in therapy,” working on controlling his temper and other emotions, and working on problems arising from being separated from his family and adopted by his foster parents.
All three bonding studies concluded the minors would not suffer any significant emotional detriment as a result of termination of parental rights and continued foster care or adoption.
In early August 2007, Mason G. was born to mother and Steven G. He was removed from appellant mother’s custody two days later.
The detention report in Mason G.’s case stated Steven G. reported Indian heritage with the Cherokee tribe on August 9, 2007.
On August 10, 2007, the Department filed a juvenile dependency petition alleging failure to protect based on the detention of Mason G.’s four siblings and half siblings due to appellant mother’s and Steven G.’s continued substance abuse and failure to rehabilitate, resulting in termination of reunification services.
The August 15, 2007, selection and implementation report concluded J.T. and M.G. had a high probability of adoption and, although they were found to be difficult to place, recommended a permanent plan of adoption for them as well. The report also concluded, as had the earlier permanency review report, that ICWA “does not apply.” J.T. was reportedly physically healthy and developmentally on track, but continued to struggle academically and had been suspended from school for leaving school grounds without permission and for misbehaving in the classroom. The foster parents reported that J.T. is hyperactive, does not listen well or pay attention to directions, and lies frequently. As a result, J.T. was participating in weekly individual counseling to work on controlling his temper and problems related to separation from his family and adoption by his foster parents.
The report also concluded S.G. and Je.T. were generally adoptable and recommended a permanent plan of adoption.
The September 2007 jurisdiction report stated ICWA may apply based on the potential eligibility of Steven G. through the Cherokee and Blackfeet tribes. The report noted the tribes were noticed on August 21, 2007, but had not yet responded.
According to the September 2007 progress report, J.T. was still struggling with behavioral problems, and engaging in unsafe behavior such as riding his bike down the middle of the street. The foster family reported concerns that J.T. had made, and would continue to make, false allegations against them. The report concluded J.T.’s behavior would “begin to become more manageable” with continued therapeutic intervention and medication.
The October 2007 progress report stated J.T.’s medication appeared to be taking effect, causing J.T. to have less frequent tantrums and be more focused when interacting with his social worker. The foster mother reported that J.T. was having less difficulty in school, was calmer and was able to pay attention to instruction. She noted, however, that he continued to engage in risk-taking, such as riding his bike down the middle of the street and trying to run across the street when cars drive past the house. J.T. and M.G.’s foster parents decided they would not pursue a plan of adoption for either child.
Court convened on October 16, 2007, for a pretrial and selection and implementation hearing (§ 366.26) regarding S.G. and Je.T., a progress report hearing regarding J.T., and a jurisdictional hearing regarding Mason G. With respect to Mason G.’s case, the court inquired for the first time whether Steven G. had any Indian heritage. Steven G. informed the court he had “[v]ery little [] Cherokee, Blackfeet Indian.” The court noted the Department had previously noticed the BIA, the Cherokee Nation, and the Blackfeet Tribe, and asked Steven G. to review the Notice of Involuntary Child Custody Proceedings for an Indian Child (form JV-135) to confirm its accuracy. Steven G. noted several items that required correction, and the court ordered the Department to submit a corrected form JV-135 regarding Mason G. prior to trial.
Mason G. was placed with a foster family in November 2007. In December 2007, the court sustained the allegations in the petition as to Mason G. and adjudged the minor a dependent child of the court. (§ 300, subd. (b).) The court denied reunification services to mother and Steven G. and set the matter for a hearing to determine the appropriate permanent plan.
The February 26, 2008, addendum report stated the previous foster family was no longer amenable to adoption of J.T. and M.G. due to J.T.’s conduct and the “small amount of funds they would receive” if they proceeded with the adoption. The two minors were moved to a new placement on December 7, 2007, and the new foster family was ready and willing to adopt them.
According to the February 26, 2008, addendum report, the minors had spent the last three months “in a stable foster/adoptive home,” with a foster family “committed to the permanent plan of adoption” for both minors. The foster family completed their adoption application and had been assigned an adoption home study social worker. Mother and Steven G. reportedly did not visit much and were engaging in some sort of domestic violence. Since the birth of Mason G. in August 2007, mother did not see the minors until January 25, 2008. Prior to the visit, J.T. told the foster mother he did not believe either parent would show up for the visit, and said he could not remember the last time he had seen his parents. A second visit was scheduled for February 1; however, mother did not show up, nor did she contact the Department to explain her absence. The report concluded the minors were “generally adoptable” and recommended termination of parental rights and a permanent plan of adoption.
The March 2008 selection and implementation report stated ICWA did not apply with respect to Mason G.
In April 2008, the court found M.G., J.T. and Mason G. adoptable and terminated parental rights as to all three minors. The court’s order included a finding that ICWA did not apply to M.G., J.T. or Mason G.
Appellants filed timely notices of appeal.
Steven G. filed a timely notice of appeal as to only the orders terminating his parental rights as to M.G. and Mason G.; however, he did not file an opening brief and his appeal was therefore dismissed.
DISCUSSION
I ICWA Inquiry and Notice
The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) The juvenile court and the Department have an affirmative duty to inquire at the outset of the proceedings whether a child who is subject to the proceedings is, or may be, an Indian child. (Cal. Rules of Court, rule 5.481(a).)
ICWA notice must include the following information, if known: the name of the child; the child’s birthdate and birthplace; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names of the child’s mother, father, grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, as well as their birthdates, places of birth and death, tribal enrollment numbers, and current and former addresses; and a copy of the petition. (§ 224.2, subd. (a)(5).)
ICWA Inquiry as to J.T.
Appellants contend, and the Department concedes, that the Department failed to provide the Indian tribes and the BIA with readily available information critical to the determination of J.T.’s Indian heritage.
We agree and accept the Department’s concession. The notices, mailed to the BIA and the tribes on June 29, 2006, included the name of the father, Bernard T., and his last known address, and indicated he might be a member of the “Choctaw” tribe but had no additional information other than the fact that his grandmother, who lives in Mississippi, might have more information. The form noted that Bernard T.’s birthdate and place of birth were unknown.
However, the Department’s own records -- i.e., the addendum report dated June 30, 2006 -- indicate the social worker met with Bernard T. on May 25, 2006, and learned that he was born in Waynesboro, Mississippi on “12/10/1959.”
Because the Department had knowledge of those critical pieces of information prior to service of the notices, it cannot be inferred that proper notice with all relevant, known, information was sent to all potentially applicable tribes. “[O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child.” (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) Notice is meaningless if inaccurate or incomplete information is presented to the tribe. (In re D.T. (2003) 113 Cal.App.4th 1449, 1455.) Here, the notices sent were incomplete. Accordingly, we remand the matter to the juvenile court so it may direct new notices to be sent to the tribes and the BIA to include Bernard T.’s birthdate and place of birth, along with any other relevant information presently known to the Department.
ICWA Inquiry as to M.G. and Mason G.
Appellants also contend the Department failed to provide the tribes and the BIA with continuing notice of the dependency proceedings despite the lack of a finding that ICWA did not apply. Appellants further contend the Department failed to make any ICWA inquiry of Steven G. The Department argues S.G. never claimed Indian ancestry in any proceeding other than Mason G.’s and, therefore, ICWA notice was never triggered as to M.G.
While the record does not contain any evidence that S.G. ever asserted Indian ancestry prior to the Mason G. proceedings, the affirmative and continuing duty to inquire lies with the Department and the juvenile court. (Cal. Rules of Court, rule 5.481(a).) “The burden is on [the Department] to obtain all possible information about the minor's potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Mother and Steven G. were not present for most of the initial hearings, and their appearance at subsequent hearings throughout the proceedings was seldom and sporadic. Nonetheless, when the parents did appear in court for proceedings involving M.G., there is no evidence in the record that any inquiry was made. However, any error resulting from that failure was harmless.
Steven G. reported Cherokee heritage in August 2007 and formal ICWA inquiry was made of him in the Mason G. proceedings in October 2007. Notices had previously been sent to the Cherokee and Blackfeet tribes and to the BIA on August 21, 2007. The Department filed return receipts from the BIA and all noticed tribes, and a response from the United Keetoowah Band of Cherokee Indians in Oklahoma, on September 6, 2007. The responses from the remaining tribes were filed on October 11, 2007.
After reviewing the previously mailed notices as directed by the juvenile court, Steven G. provided corrected information which was then sent to the respective tribes in letter form on October 18, 2007. The correction letter was sent to the BIA on October 24, 2007. The tribes’ responses indicating no Indian heritage were filed on November 21, 2007, and January 10, 2008. Given that Mason G. and M.G. are directly related, having Steven G. as their father and appellant as their mother, a finding that Mason G. is not an Indian child is dispositive of the ICWA issue as to M.G.
In any event, remand of this matter back to the juvenile court for further inquiry as to M.G. is unnecessary, given that the Department, on June 6, 2008, mailed the appropriate notices regarding M.G. to the BIA and the Cherokee and Blackfeet tribes, and received responses from each of the respective tribes stating M.G. was not an Indian child for purposes of ICWA. We conclude the ICWA notice requirements have been met with respect to M.G. Appellants urge us not to consider this postjudgment evidence because the Department failed to file a motion pursuant to Code of Civil Procedure section 909. Appellants’ argument is moot, as the evidence was made a part of the appellate record when we granted the Department’s augmentation request.
Finally, appellants contend the Department gave deficient notice by sending the corrected background information to the tribes in letter form, and that the Department failed to serve the BIA. We disagree on both counts. Appellants cite no authority, and we can find none, to support the claim that corrected information must be contained on the form JV-135. We infer, from the responses to the original notice documentation, that the tribes are capable of reconciling the original information with the corrected information. Furthermore, the record contains a declaration of mailing, along with the attached correction letter sent to the BIA on October 24, 2007. The BIA confirmed receipt of that letter on October 26, 2007. We find no error.
II Sibling Exception to Termination of Parental Rights
Appellants contend the juvenile court should have applied the exception to adoption that applies when adoption will result in a “substantial interference with a child’s sibling relationship . . . .” (§ 366.26, subd. (c)(1)(B)(v).) However, appellant mother’s reply brief concedes that our opinion in related case No. C057677, filed subsequent to the filing of mother’s opening brief in this appeal, “disposes of the issues raised regarding the . . . sibling relationship exception to the termination of parental rights.” Based on that concession and the lack of any additional argument regarding the sibling relationships exception, we conclude that appellants have withdrawn their original claim in that regard and we therefore affirm the order of the juvenile court.
Appellant Bernard T. elected not to file a reply brief.
III Bonding Assessments
Appellants contend that, although the court ordered three bonding studies, it failed to order a bonding study specifically addressing the bonding between the minors themselves, thereby violating their due process rights. Not having raised that issue before the juvenile court, appellants forfeited the issue for appellate purposes. (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1338-1339.) In any event, mother’s reply brief concedes our opinion in related case No. C057677 “disposes of the issues raised regarding the bonding assessment . . . .” Based on that concession and the lack of any additional argument regarding the bonding assessment, we conclude appellants have withdrawn their original claim in that regard. We therefore affirm the order of the juvenile court.
IV Adoptability Finding
Appellants contend the juvenile court's order terminating parental rights as to M.G. and J.T. must be reversed because the finding that it was likely the minors would be adopted was not supported by substantial evidence. According to appellants, there was insufficient evidence of general adoptability, and the court did not make the required assessment of the suitability of the prospective adoptive parents. Appellants also claim deficiencies in the February 26, 2008, addendum report regarding the prospective adoptive parents raise doubts as to the minors’ adoptability.
When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts in favor of the prevailing party. Matters of fact and credibility are questions for the trier of fact to resolve, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Jason L., supra, at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.)
Generally, a claim of insufficient evidence of the minor's adoptability is not waived by failure to raise the issue in the juvenile court. (In re Brian P. (2002) 99 Cal.App.4th 616, 623.)
The issue of adoptability "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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, emphasis omitted.) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (Ibid.)
The record in this case reflects M.G. and J.T. were generally healthy and developmentally on target. As first reported in May 2007, J.T. had problems, including emotional outbursts, telling people he “hates being a foster kid and feels that no one loves him,” and took risks such as riding his bicycle down the middle of the road and running across the street when cars were present. Over the months that followed, those problems were addressed through individual counseling and medication and, over time, J.T. began to show progress. Minor academic problems were being addressed with some success as well. The record suggests that, as a result of J.T.’s continuing regimen of therapy and medication, his emotional outbursts became less frequent and his academic difficulties decreased, although his unsafe risk-taking persisted. The Department found there was a high probability that both he and M.G. would be adopted notwithstanding that they might be difficult to place. The fact J.T. may have continuing problems does not foreclose a finding of adoptability. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.) In fact, while the previous foster parents elected not to adopt either child due, in part, to those problems, a new placement was quickly found and, after just three months, the new foster family expressed a desire to adopt both minors.
Based on this evidence, the juvenile court reasonably could find, as it did, that although the record suggests J.T. may continue to present some challenges to caretakers, both he and M.G. were likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)
Appellants claim the juvenile court based its adoptability determination “on the availability of the [minors’] placements” and, as such, the court failed to assess the suitability of the prospective adoptive parents. Appellants further claim that, regarding the issue of the adoptive parents’ suitability, the reports were deficient. Appellants are wrong on the first count, and we therefore reject both contentions.
In finding the minors adoptable, the court stated: “The issue of adoptability focuses on the child -- the minor and whether the child’s age, physical condition, emotional state make it difficult to find a person willing to adopt the minor. It is not necessary that the minor already be in a potential adoptive home or even have a potential adoptive parent. [¶] In this case we have that for both -- for all three of these children. We have a potential adoptive home. There is no reason by virtue of these children’s age or behaviors or emotional states to believe based on the evidence that they are not likely to be adopted. In fact, the evidence is clear[ly] contrary. The evidence is clear and convincing that they are likely to be adopted. . . .” The reports upon which the juvenile court relied, including the February 26, 2008, addendum report, concluded the minors were “generally adoptable.”
While the court noted there was a prospective adoptive family ready and willing to adopt J.T. and M.G., that fact was not the basis for the finding of adoptability. Instead, the court’s finding was based on the age, health, behavior and emotional state of the minors and the absence of any evidence to suggest they might be less likely to be adopted. Where, as here, the minors are adoptable based on factors in addition to a caretaker’s willingness to adopt, the suitability or availability of the caretaker to adopt is not a relevant inquiry. (In re Sarah M, supra, 22 Cal.App.4th at pp. 1650-1651.) The fact the minors are generally adoptable renders the availability of prospective adoptive parents irrelevant to the adoptability findings. (In re Scott M. (1993)13 Cal.App.4th 839, 843; In re Sarah M., supra, 22 Cal.App.4th at p. 1651; In re T.S. (2003) 113 Cal.App.4th 1323, 1329.) “[T]he question of a family's suitability to adopt is an issue which is reserved for the subsequent adoption proceeding.” (In re Scott M., supra, 13 Cal.App.4th at p. 844.)
Substantial evidence supports the juvenile court’s adoptability finding as to both J.T. and M.G.
DISPOSITION
The order terminating parental rights as to J.T. is vacated, and the matter is remanded to the juvenile court with directions to order the Department to provide proper ICWA notice to the relevant tribes and BIA, including the birthdate and birthplace of Bernard T., and to comply with all statutory requirements regarding filing of notices and return receipts with the juvenile court. If, after proper and complete notice, the BIA or a tribe determines that the minor is an Indian child as defined by ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA. If, on the other hand, no response is received or the tribes and the BIA determine the minor is not an Indian child, all previous findings and orders shall be reinstated. The juvenile court’s orders related to M.G. and Mason G. are affirmed.
We concur: SCOTLAND, P. J., SIMS, J.