Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JD223867
NICHOLSON, J.
J.M., mother of the minor, appeals from orders of the juvenile court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395 [further undesignated statutory references are to this code].) Appellant contends the court failed to articulate the clear and convincing standard applicable to finding the minor was likely to be adopted, substantial evidence did not support the finding, and the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) were not met. We reverse for compliance with the ICWA notice provisions.
FACTS
The seven-month-old minor was removed from parental custody in February 2006 due to allegations of substance abuse and failure to provide for the minor. Although appellant initially denied Indian heritage, she and the father of the minor eventually claimed Blackfeet heritage. At the first detention hearing the court ordered that notice of the proceedings be given to the Blackfeet tribe.
A declaration by the paralegal responsible for the notice stated the notices contained all information made available to her and that the father provided a family tree of the relevant paternal ancestors. Appellant did not complete an ancestry questionnaire. The paralegal sent notice to the Blackfeet tribe, the three federally recognized Cherokee tribes, and the Bureau of Indian Affairs (BIA) on March 20, 2006. The notice form the paralegal sent contained an incorrect spelling of appellant’s last name and the maternal grandmother’s first name; lacked the maternal grandmother’s address, the maternal grandfather’s name, the name and address of the paternal grandmother and the mother’s birthplace; and provided only one of the two spellings given for the paternal great-grandmother.
At the dispositional hearing, the court denied the parents reunification services and set a section 366.26 hearing. The court also set a hearing to determine compliance with the ICWA. On August 11, 2006, in an unreported hearing with all counsel present, the court was informed, off the record, that the minor was not an Indian child. The court found that the identified tribes had determined the minor was not eligible for membership, that the ICWA did not apply and no further notice was required.
A notice of the date of the section 366.26 hearing, containing the same errors as the first notice, was sent to the tribes the day before this order.
The selection and implementation report for the section 366.26 hearing stated the minor had been in the same foster home for four months, was developing normally and had adjusted to the home with no significant emotional or behavior problems. The current caretakers were considering adoption and another family had expressed an interest in her as well. The social worker considered it likely that a home would soon be found for the minor, who was generally adoptable.
At the section 366.26 hearing, the juvenile court adopted the social worker’s recommended findings and orders, terminating parental rights and selecting adoption as a permanent plan. The adopted findings did not state there was clear and convincing evidence the minor was likely to be adopted although the subsequent form order signed by the court did.
DISCUSSION
I
Appellant argues the court failed to articulate the proper standard for assessing the likelihood that the minor would be adopted.
At the selection and implementation hearing, “[i]f the court determines, based on the assessment provided . . . 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).)
The court adopted the recommended findings and orders proposed by the social worker. These findings did not expressly state the clear and convincing standard and the court did not articulate it when adopting the findings. Not only does the statute not require a statement of the standard on the record, the Supreme Court has held that there is no need to articulate a well-known standard of proof. (Ross v. Superior Court (1977) 19 Cal.3d 899, 914-915; In re Bernadette C. (1982) 127 Cal.App.3d 618, 625.) No error appears.
II
Appellant contends there is insufficient evidence to support the court’s finding that the minor was likely to be adopted.
The argument relies in part on a document which was not before the trial court, but which appellant requests this court judicially notice. Specifically, appellant requests judicial notice of a page from a document entitled “California Child and Family Services Review Statewide Assessment,” purportedly issued by the California Department of Social Services, and has attached a copy of the relevant page. Respondent filed opposition to the request, noting the material was not before the trial court and objecting to the document on foundational grounds.
When the sufficiency of the evidence to support a finding or order is challenged on appeal, even where the standard of proof in the trial court is clear and convincing, the reviewing court must determine if there is any substantial evidence -- that is, evidence which 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 recognize that all conflicts are to be resolved in favor of the prevailing party and that issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.)
As noted above, if the court determines it likely the child will be adopted, termination of parental rights must follow. (§ 366.26, subd. (c)(1).) “The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted.” (§ 366.26, subd. (c)(1); In re Scott M. (1993) 13 Cal.App.4th 839, 844.)
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.) “[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.) 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.)
The minor was young, healthy and without developmental emotional or behavioral problems. At least two families had expressed an interest in adopting her. The social worker assessed her as generally adoptable. Ample evidence supports the juvenile court’s findings.
Appellant raises the specter that if the juvenile court erred, the minor could become a “legal orphan.” Whatever significance that term might have, it no longer applies to minors in California. The Legislature has provided a mechanism for minors who have not been adopted to reinstate parental rights. (§ 366.26, subd. (i)(2).)
III
Appellant asserts that the ICWA notice to the tribes was defective in several respects in that names and addresses were missing or misspelled.
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 5.664(d).) If, after the petition is filed, the court “knows or has reason to know that an Indian child is involved,” notice of the pending proceeding and the right to intervene must be sent to the tribe or the BIA if the tribal affiliation is not known. (25 U.S.C. § 1912; Cal. Rules of Court, rule 5.664(f).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)
Federal Regulations and the federal guidelines on Indian child custody proceedings both specify the contents of the notice to be sent to the tribe in order to inform the tribe of the proceedings and assist the tribe in determining if the child is a member or eligible for membership. (25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. 67584, 67588 (Nov. 26, 1979).) If known, the agency should provide name and date and place of birth of the child; the tribe in which membership is claimed; the names, birthdates, and places of birth and death, current addresses and tribal enrollment numbers of the parents, grandparents and great-grandparents as this information will assist the tribe in making its determination of whether the child is eligible for membership and whether to intervene. (25 C.F.R. § 23.11(a), (d), (e); 44 Fed.Reg. 67584, 67588 (Nov. 26, 1979); In re D. T. (2003) 113 Cal.App.4th 1449, 1454-1455.) Failure to provide accurate, known information will generally result in reversal for the purpose of giving proper notice to the tribes. (In re D. T., supra, 113 Cal.App.4th at pp. 1454-1455.)
Respondent recognizes the notice to the tribes contained the errors listed above. The errors are relatively minor and could potentially be subject to harmless error analysis. However, since the hearing at which ICWA compliance was addressed was not reported and no settled statement of the proceedings was provided, we cannot determine whether the court was apprised of the errors or whether the issue was resolved in some other manner. Accordingly, reversal is required for proper notices of the proceedings to be given.
Appellant argues the court’s determination that ICWA does not apply is also faulty because the court did not wait 60 days from the second notice.
Former Rule 5.664(f) set forth the requirement of notifying the tribes of the pending petition. Subdivision (f)(6) of that rule stated that if, “after a reasonable time following the sending of notice under this rule -- but in no event less than 60 days -- no determinative response to the notice is received, the court may determine that the act does not apply to the case unless further evidence of the applicability of the act is later received . . . .”
Reading the rule in a commonsense fashion, it is clear that the 60-day period runs from the time the first notice was sent. Since more than 60 days elapsed by the time the court held a hearing to determine ICWA compliance, the rule was not violated.
DISPOSITION
The orders terminating appellant’s parental rights are reversed and the matter is remanded for the limited purpose of compliance with the ICWA. The juvenile court is directed to order the Sacramento County Department of Health and Human Services to comply promptly with the notice provisions of the ICWA, if it has not already done so. Thereafter, if there is no response or if the tribe or the BIA determines the minor is not an Indian child, the orders shall be reinstated. However, if the tribe or the BIA determines the minor is an Indian child or if information is presented to the juvenile court that affirmatively indicates the minor is an Indian child as defined by the ICWA and the court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new selection and implementation hearing in conformance with all provisions of the ICWA.
We concur: SCOTLAND , P.J., RAYE , J.
It is not clear from appellant’s motion that the document which is the subject of the motion is an official act within the meaning of Evidence Code section 452, subdivision (c). In any case, the information in the document, at best, suggests that children from minority homes may be more difficult to place in an adoptive home. However, that assertion is necessarily only speculative when applied to a specific case, particularly where, as here, the information was not presented to the trial court. The request for judicial notice is denied.