Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court No. 06CEJ300048-1 of Fresno County. Jane Cardoza, Judge.
Laura Pedicini, under appointment by the Court of Appeal, for Defendant and Appellant.
Dennis A. Marshall, County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
OPINION
Before Vartabedian, Acting P.J., Harris, J., and Dawson, J.
Stevie H. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her young son and daughter. She contends respondent Fresno County Department of Children and Family Services (department) failed to both: comply with the notice requirements of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.); and establish it was likely the children would be adopted. On review, we will conditionally reverse the termination order in light of the ICWA notice violation. Otherwise, we affirm the adoptability finding.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
In October 2006, the Fresno County Superior Court adjudged M. and K. dependent children, removed them from parental custody, and ordered services for their parents. The court previously determined the children, both of whom were under the age of two, came within its jurisdiction under section 300, subdivisions (b) and (g). When M. was only 14 months old, he pulled a cup of hot soup off a counter and suffered scalding burns. All the while appellant, who had a history of methamphetamine abuse, was under the influence of drugs. She in turn was arrested and could not provide or arrange for the children’s care. The children’s father, meanwhile, was also incarcerated.
At the outset of the case, appellant denied any Indian heritage in response to a social worker’s inquiry. The record is silent regarding any such inquiry made of the father. However, in a February 2007 status review report, the department advised that ICWA might apply as the children’s paternal grandmother recently informed the department that the children might have Cherokee and Comanche blood. The department claimed it was unable to start “paperwork for ICWA” because the paternal grandmother did not have an enrollment number or the name of the band. Although the department later reported ICWA did not apply, the record contains no foundation whatsoever for the department’s claim. The issue was never raised, let alone resolved, in any oral proceeding before the court.
Meanwhile, appellant and the children’s father failed to reunify. Consequently, in March 2007, the court terminated reunification efforts and set a section 366.26 hearing to select and implement a permanent plan for each of the children. Although appellant filed a writ petition following the setting order, she did not claim the court erred. Rather, she asked this court for another chance to reunify. In the absence of any alleged error, we dismissed her extraordinary writ petition. (S.H. v. Superior Court (F052632).)
In July 2007, the department prepared a “366.26 WIC Report” in which it recommended the court find the children likely to be adopted, select adoption as their permanent plan, and terminate parental rights. Included in the report was an adoption assessment. The department social worker who assessed the children believed two-year-old M. and one-year-old K. were generally adoptable given their young ages and good physical health.
The social worker acknowledged the children had appeared to be behind developmentally, according to evaluations conducted by Central Valley Regional Center (CVRC) in March 2007. CVRC letters attached to the department’s report revealed each child was eligible for early intervention services up to the age of three. Both children suffered significant expressive and receptive language delays. However, as the social worker mentioned in her assessment, the children were receiving CVRC services to overcome their delays, in the form of speech therapy, referrals for hearing tests, and toddler group sessions.
In addition, the children were placed in a “risk adopt home” committed to the children’s ongoing care and adoption. The children had been placed with their prospective adoptive parents in April 2007. The children referred to their care providers as “‘mom’” and “‘dad,’” appeared to share a positive attachment to their prospective adoptive parents, and sought them out for affection. Finally, the social worker explained “[i]f the children were not placed in an adoptive home, ... it would be highly likely to identify another adoptive home.”
The record does not disclose what the department meant by the phrase “risk adopt home.”
The court eventually conducted its section 366.26 hearing two months later in September 2007. By that time, the department submitted to the court copies of recent mental health evaluations of each child. The children had been attending weekly attachment therapy sessions with their current care providers. Despite the relatively brief length of their dependency, the children had experienced a total of six placements. According to the recent evaluations, however, the therapy sessions lasted only three months. In July 2007, M. in particular was discharged having met the therapy’s goals. The children were no longer in need of mental health care as their behaviors appeared to have changed significantly and the children were acting and reacting in an appropriate fashion. They had no diagnosed mental health problems. Both showed signs of appropriate attachment for their respective ages and to their prospective adoptive parents. In addition, the evaluations revealed CVRC had recently reassessed both children regarding their development. K. had “just about caught up.” M. was currently “advanced in his development” and “assessed to be at 30-36 months.” Cognitively speaking, both children were currently “WNL” or within normal limits.
At the section 366.26 hearing, appellant and her aunt testified in support of appellant’s claim that termination would be detrimental to the children’s best interests based on their relationship with her. Relevant to appellant’s argument before this court, the aunt testified about the various placements the children experienced. She testified she had had contact with the care providers, having seen them at visits throughout the history of the case. It was her understanding that at least two of the placements ended due to possible abuse. Another failed due to the foster couple’s marital problems. Two more were emergency or interim placements. Then, in April 2007, the department placed the children with the current care providers. County counsel would agree the children’s placements had not been stable.
The aunt, who had an undergraduate degree in early childhood development and a master’s degree in special education, also testified she previously was concerned about the children’s development. She then offered her opinion that the prospective adoptive parents are doing a wonderful job taking care of the children who were “starting to thrive” in the home. It has been their most stable placement to date and she has seen an improvement in the children.
Following closing arguments, the court found clear and convincing evidence that it was likely the children would be adopted and terminated parental rights.
DISCUSSION
I. ICWA Notice
The department concedes it should have sent ICWA-required notice to the Bureau of Indian Affairs (BIA) and all federally recognized Cherokee and Comanche tribes once it received the paternal grandmother’s information that the children might have Cherokee and Comanche blood. (§ 224.2.) It also acknowledges its social worker was legally incorrect in her assessment of the situation. The lack of an enrollment number or name of an Indian band was irrelevant to the department’s obligation to send notice under ICWA. The department agrees with appellant that the case should be remanded for further proceedings in compliance with ICWA. We concur and will conditionally reverse the order terminating parental rights, as described in our disposition.
Before we move on to appellant’s other appellate issue, we note she started her ICWA-notice argument by anticipating a claim that she had forfeited the issue by not raising it earlier. (See In re Pedro N. (1995) 35 Cal.App.4th 183.) Regardless of respondent’s concession, we would find appellant raised the issue in a timely fashion and there was no forfeiture. The ICWA question only emerged at the six-month review stage when the court set the section 366.26 hearing. It also remained unresolved at that point, as the department essentially purported it was still investigating the matter. The next appealable order was the decision to terminate parental rights which we now review.
II. Adoptability
Appellant also challenges the court’s finding that her children were likely to be adopted for insufficient evidence. She criticizes the court and the department because there was no approved adoptive home study for the prospective adoptive parents. She also characterizes the department’s opinion that the children were generally adoptable as a “blurb” (AOB 26) and chastises the department for not fully considering that M. and K. had special needs such that they were not generally adoptable. Having reviewed the record and the law, we disagree.
Before a court may terminate parental rights, it must find by clear and convincing evidence that it is likely the dependent child will be adopted. (§ 366.26, subd. (c)(1).) The adoptability question focuses on the dependent child, e.g., whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be in a potential adoptive home or that there be a proposed adoptive parent “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.)
The record before us contains substantial evidence that each of appellant’s children was likely to be adopted. At the time of the section 366.26 hearing, M. and K. were quite young and physically healthy, as well as developmentally and emotionally on track. While appellant chooses to ignore the recent updated evidence regarding the children’s emotional and developmental progress, we do not. In addition, there was the social worker’s adoptability opinion. Although appellant may characterize it as a “blurb,” it was up to the trial court, not this court, to determine what weight to give that opinion. (In re Laura F. (1983) 33 Cal.3d 826, 833.) Indeed, even appellant’s own witness, the maternal aunt, acknowledged that despite her earlier concerns the children were starting to thrive. Once again, we note that appellant wholly ignores this evidence, concentrating instead on earlier portions of the record.
To the extent appellant also hints the children’s unstable placement history is evidence that it is unlikely they will be adopted, we also disagree. There is no evidence in the record that any of the children’s placements failed due to some negative behavior or attribute on their part. Once again, appellant’s own witness testified about more than one placement apparently failing due to abuse in the foster home. While we may draw inferences from the record, we may do so only as to those legitimate inferences which uphold the decision of the trial court. (In re Laura F., supra, 33 Cal.3d at p. 833.) Not only does appellant draw inferences to reverse the judgment, her inference drawing, that is the number of placements means the children are not adoptable, is less than reasonable.
Last, this was not a case where the children’s adoptability was based solely on their prospective adoptive parents’ willingness to adopt. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1062; In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) It is only in that situation where an inquiry into legal impediments to adoption may be made. (Ibid.) Notably, in this case, there was no evidence of legal impediments to adoption.
Under these circumstances, we conclude there is no merit to appellant’s argument. Substantial evidence supports the court’s adoptability finding.
DISPOSITION
The order terminating parental rights is conditionally reversed and the case is remanded for a limited remand. The superior court is directed to assure that an inquiry is conducted pursuant to section 224.3, subdivisions (a)-(c) and notice is served pursuant to section 224.2 based on the paternal grandmother’s claim of Indian heritage. The department must provide notice in accordance with section 224.2 and in compliance with ICWA to the BIA and any identified tribes. In the event the BIA or any tribe responds by confirming that the children are or may be eligible for membership, the court shall proceed accordingly and is hereby authorized to vacate, in whole or in part, any prior finding or order which is inconsistent with ICWA requirements. If there is no confirmation that the child is or may be eligible for Indian tribal membership within 60 days after proper and adequate notice has been received (§ 224.3, subd. (e)(3)), the court shall reinstate the order terminating parental rights.