From Casetext: Smarter Legal Research

In re Nicole S.

California Court of Appeals, First District, First Division
Mar 19, 2008
No. A118372 (Cal. Ct. App. Mar. 19, 2008)

Opinion


In re NICOLE S., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. TRACY S., Defendant and Appellant. A118372 California Court of Appeal, First District, First Division March 19, 2008

NOT TO BE PUBLISHED

Alameda County Super. Ct. No. J183489

STEIN, J.

Tracy S., the mother of a minor child (the child), appeals from an order terminating her parental rights. She contends the juvenile court erred when it determined the child is adoptable and also contends the requirements of the Indian Child Welfare Act (ICWA) were not met. We disagree and affirm the order.

BACKGROUND

The child was born in November 2001. Her 18-year-old parents lived with her in the home of the paternal great-grandmother. In December 2001, the child was hospitalized with two skull fractures that caused her to suffer subdural bleeding and brain damage. The child also had a fractured tibia and possible fractured ribs. The parents had no explanation for the child’s injuries. A few days later, the father’s 11-year-old sister told her school counselor she had dropped the child down the stairs, stating she had been having nightmares, was unable to sleep and believed everything to be her fault. A psychologist reported the sister appeared to be truly distressed and was assuming full responsibility for the child’s injuries. She was suffering from lack of sleep and posttraumatic stress disorder. The mother recalled the sister had taken the child down the stairs. She had not heard anything that sounded like a fall and assumed everything was all right.

Both parents expressed the desire to care for the child, recognizing the child would have special needs as a result of her injuries. They ultimately admitted to the allegations of an amended Welfare and Institutions Code section 300 petition alleging a failure to protect (§ 300, subd. (b)) in that the child’s injuries could have been accidental; the mother had left the child in the care of a nonresponsible caretaker, which led to the child’s injuries; and the father had been asleep at the time of the incident. The parents agreed to comply with a case plan developed for the family and appeared to be committed to caring for the child, and the Alameda County Social Services Agency (Agency) recommended the child be returned to the parents. The court found the allegations of the amended petition to be true, placed the child with the parents, and ordered family maintenance services to the parents and the child. Review reports filed in March 2002, June 2002 and September 2002 indicated the parents had been complying with the case plan and were doing everything they could to ensure the child’s needs were being met. The child began exhibiting physical limitations suggesting cerebral palsy, possible spasticity, and possible vision problems.

Except as indicated, all further statutory references are to the Welfare and Institutions Code.

The appellate record contains no further entries until September 2005, when the child was three years old. At that time, the parents and the paternal great-grandmother were arrested in connection with the death of the child’s infant brother (the infant). Paramedics had been called to the great-grandmother’s home, where the parents still were living, after the great-grandmother noticed the infant was not responding. The infant had died from injuries resulting from blunt force trauma to the head. His injuries included subdural hemorrhage, cerebral swelling, retinal hemorrhages to his eyes and ulcerations to the rectal area. The father later admitted to having shaken the infant. He has been convicted of murder and is incarcerated.

There was evidence these injuries were a rash caused by a reaction to baby wipes. The infant had been seen by a doctor for the condition. The condition improved, briefly, but reappeared and the rash was quite severe at the time of the infant’s death. The parents had not taken the infant back to the doctor because there was some kind of issue about insurance.

A new petition was filed, alleging failure to protect (§ 300, subd. (b)) and abuse of a sibling (§ 300, subd. (j)). In addition to allegations concerning the infant’s death, the petition alleged the mother had a substance abuse problem that interfered with her ability to care for the child, and the infant had tested positive at birth for barbiturates and tricyclic antidepressants. The petition also alleged the paternal great-grandmother had admitted knowing about the infant’s injuries but did not seek help right away. That allegation apparently referred to the ulcerations but not to the injuries caused when the father shook the infant.

The petition also alleged the police had responded to the parents’ home 195 times over a 10-year period for problems including drugs, guns, violence and other criminal activities. That allegation, which was not supported or substantiated by anything in the social reports, later was abandoned without explanation.

The father admitted to shaking the infant on a single occasion. There was no evidence either the mother or paternal great-grandmother were aware of the shaking. It also appears paramedics were called immediately after the paternal great-grandmother, who had gone in to check on the infant, found the infant to be nonresponsive and cool to the touch. The great-grandmother did, however, admit to having been aware of the rash on the infant’s buttocks.

The mother reported she had discontinued contact with the Regional Center (an agency providing services to disabled persons and their caretakers) when the child was two years old, because “they didn’t believe anything I said and they treated [me] like I was stupid.” By this time the child had been diagnosed as suffering from cerebral palsy. She was nonverbal, did not walk and was still in diapers. She could not chew or drink, even from a baby bottle. Liquid was added to her food. She was chronically constipated. Her left side was completely rigid. She did not have a wheelchair. She never had been to a dentist.

The mother later explained that she had terminated services with the Regional Center because the child would cry when representatives from the center came “and they were very belittling of me. I would tell them what she could do and they wouldn’t believe me. I asked to work with different people, but they didn’t have anyone else.”

The parents admitted to an amended supplemental petition, filed under section 387, alleging the infant had died of specified injuries, the parents had been arrested in connection with the death and the father admitted to causing the infant’s injuries, the mother knew of the infant’s ulceration injuries but failed to obtain medical attention and failed to protect the infant from the father’s abuse, and the child was at risk for the same type of injuries. The amended petition further alleged the infant had tested positive at birth for methamphetamines and the mother had a history of substance abuse that had interfered with her ability to care for the child. It also referred to the child’s own injuries and hospitalization. The mother waived reunification services. The court found true the allegations of the amended supplemental petition, denied reunification services and adopted a permanent plan of termination of parental rights and adoption.

The child was placed with foster parents. The permanency planning selection hearing was begun in May 2006, continued to February 15, 2007, continued again to May 15, 2007, and completed on June 26, 2007.

As relevant to the issue of adoptability, the social reports indicate sometime before May 2006, child welfare worker Mary Taylor-Asarnow had been contacted by a paternal cousin, who asked to be considered for placement, but the cousin later concluded she and her husband would be unable to care for a severely disabled child. A report filed on November 3, 2006, recited the child’s foster parents were very fond of the child, but were in their 70’s and did not believe they could provide the lifelong care the child would need. Child welfare worker Wayne Luk, an adoption placement specialist, was in the process of searching for an adoptive home.

By November 2006, Mr. Luk had identified an out-of-state family willing and able to adopt the child. Ms. Taylor-Asarnow had spoken with the family and was favorably impressed, reporting the parents were in their early 30’s, had two biological sons but wished to adopt and care for a child with special needs. The wife had two adoptive brothers, both of whom are autistic, and the family had some understanding of issues around adoption and serious disability. By January 2007, a second family had been identified. This family, which became the prospective adoptive family, resided in California. Ms. Taylor-Asarnow reported the parents had a great deal of experience and expertise with special needs children. They had adopted and are raising their granddaughter, who was born with severe disabilities, including cerebral palsy. They had fostered an infant with shaken baby syndrome. The parents had visited the child in the foster home and at school over a four-day period. They spent several hours a day in the foster home helping to care for the child, including feeding and bathing her. They took her for walks. The foster mother reported the child had taken quickly to the couple. The prospective adoptive parents also reported a very positive experience with the child. They met with the child’s teacher, receiving copies of the child’s most recent individualized education plan (IEP). The prospective adoptive parents later met with the program manager for their own school district’s special education school, reviewing the child’s IEP with her. They planned to continue preplacement visits and were very excited at the prospect of providing a permanent home for the child and of adopting her.

An addendum to the report, prepared for the May 2007 hearing, adds that the prospective adoptive parents had been married for 23 years. The husband was 56 years old and was employed as a firefighter. The wife was 51 years old. She had worked as a paramedic but currently was a stay-at-home parent. The husband had an adult daughter from a previous marriage, who, with her husband, had agreed to take custody of the child if the prospective adoptive parents became incapacitated. The wife has an adult daughter from a previous marriage, who has a 10-year-old daughter whom the prospective adoptive parents had adopted. The granddaughter was a special needs child who until recently had required a feeding tube. The prospective adoptive parents also were caring for a three-year-old foster daughter with special needs. There were nearby supportive family members. The prospective caretakers were open to some continued contact with the mother and wished to meet her before placement.

At the permanency planning selection hearing, Mr. Luk testified about his observations of the child, including her interaction with her foster family. He observed her to be bright, affectionate and interactive. It appeared to him the child was functioning emotionally at somewhere between one year and 18 months old. Mr. Luk had not personally observed the child and the mother together, but from what he saw in the case file, he believed the child recognized and interacted with the mother.

Mr. Luk described both families identified as possible adoptive families as being “very solid.” He stated the adoptability of children with special needs varies. Mr. Luk explained, “In terms of [the child], I have been able to locate two prospective adoptive families. If this current family is unable to meet [the child’s] needs, I will then establish contact once again with the original prospective adoptive family to see if they’re currently available. . . . [I]f they are not available, I would then start a new recruitment process. But based on the fact that I did locate two prospective adoptive homes inside a six month span of time, my belief is that I will have the ability to locate other families in the future.”

As to the second, California, family, Mr. Luk pointed out the prospective adoptive parents had a history of providing for children with special needs and had taken care of a shaken child. There was a nearby hospital that had provided for the needs of another of their children and appeared to be equipped to deal with the child’s particular needs. The parents’ adoptive child, the 10-year old girl with cerebral palsy, had lived with the parents for most of her life. That child also suffered from Pierre Robin syndrome, a genetic disorder that caused her to have difficulty swallowing, but that problem had been cleared up. The three-year-old foster child also had health problems, including heart abnormalities, so that she required a pacemaker. Mr. Luk had spoken with the home study worker where the prospective adoptive parents lived, explaining to her the child’s needs. The home study worker reported she had observed the family and had spoken with others familiar with the family. She wrote a letter that supported Mr. Luk’s opinion the family could take care of the child’s needs. The family had agreed with their county that they would not take any additional children into their home until the child’s situation with them was stabilized.

Mr. Luk pointed out the prospective adoptive parents had provided care for the child, stating his opinion they had demonstrated their ability to provide physical care for her. The foster mother had told him the child’s visits with the prospective adoptive parents generally went well. “I believe it was the second night, they got [the child] to bed a little bit later than normal. So the following day, [the child] was a little bit more cranky. But the foster mother talked to the prospective adoptive parents about the fact that it was very important for [the child] to be on a regular schedule and so the prospective adoptive parents were very careful about that afterwards. The foster mother expressed no other concerns about the prospective adoptive parents.

Mr. Luk also believed the child’s educational needs could be met by the prospective adoptive family. He pointed out, again, that their adoptive child, the 10-year-old girl with special needs, had lived with the parents for most of her life and had entered a specialized education program in the area. The parents had contacted the school and told Mr. Luk the school was prepared to receive the child and provide services for her. The Agency also submitted a letter from the school’s program manager. The manager recited she had reviewed the child’s educational goals, reporting, “At this time, they appear to be very appropriate and can be continued at this educational placement. She can also receive therapy services through the local CCS services which operates an MTU at our school. We also have vision consultation services. Upon arrival to the area, we will provide a 30 day interim placement at which time we can get to know [the child]. . . . [¶] We look forward to meeting [the child] in the future.

Mr. Luk also spoke with the out-of-state family about the child’s educational needs. They reported they had contacted the school district, which indicated it was able to provide services for the child. In Mr. Luk’s opinion, that family also would have been able to meet the child’s behavioral needs.

Dr. Deborah Roberto, a psychologist, testified on behalf of the mother, explaining she had been asked to do an assessment of the attachment between the mother and the child and determine the impact on the child should the bond between the two be lost. Dr. Roberto observed a visit between the mother and the child, noting the child became excited when she realized the mother was present. It was clear the mother missed the child and loves to hold her close. The interaction between them was positive, playful and loving. Dr. Roberto reported the foster mother told her she had not heard from the prospective adoptive parents for awhile, stating, “They seemed to disappear last month. They didn’t come for two weeks and when I call they never returned my calls.” The foster mother also stated she had left the child with the prospective adoptive parents “and sometimes she’s been okay and sometimes she isn’t.”

Most of Dr. Roberto’s direct testimony was submitted in the form of her report, Mother’s Exhibit A.

A few days later, Dr. Roberto observed the interaction between the child and the prospective adoptive parents, who were visiting with their adoptive daughter and foster child. The prospective adoptive father was playing the piano and the child was really enjoying herself. The children were friendly. The prospective adoptive father stated he would be retiring the following year and would be home full time. The child enjoyed being held by the prospective adoptive father and he was very affectionate with her. She was not as excited about being held by the prospective adoptive mother, but smiled when the prospective adoptive mother kissed her. Dr. Roberto asked the prospective adoptive parents why they had decided to adopt the child. The mother replied, “We have [the granddaughter] and we felt like she needed company at home. So we decided to try to adopt some special needs children.”

Dr. Roberto believed the child had a secure bond and loving attachment with the mother. She believed the child was thriving in the home of the foster parents, opining, “It may be that transitioning her into a new home environment at this early juncture would not be in her best interest.” Dr. Roberto noted the child currently was enrolled in a program that is considered to be one of the best in the state, with specialized classes that do not exist in most school districts. She did not, however, know what services were offered by the school near the prospective foster parents. She stated, “It seems to me that [the child] deserves the optimum chance and that to assume that [the mother], already a strong attachment figure for [the child], will never be able to the optimal parent is a premature decision.”

At the close of the hearing, the court terminated both parents’ parental rights, finding, among other things, there was clear and convincing evidence it was likely the child would be adopted.

DISCUSSION

I.

Absence of Child Welfare Worker

Ms. Taylor-Asarnow appears to have been the child’s primary caseworker at the time the 2006 petition was filed, but later left on medical leave. Ms. Taylor-Asarnow appeared at the February 15, 2007 hearing, where she was examined and cross-examined about her observations and the matters she had placed in the reports. The hearing was suspended, however, before the mother’s cross-examination was completed. The hearing was continued to May 15, 2007, by which time Ms. Taylor-Asarnow was unavailable as a witness. Mr. Luk, the adoption placement specialist, who had worked on the case from the beginning, had taken over for Ms. Taylor-Asarnow as the primary caseworker and was present in court, as was Laura Loomis, a caseworker who had prepared at least some of the reports and who also had been involved in the case for some time. The mother’s attorney moved for a mistrial, pointing out Ms. Taylor-Asarnow had authored the case notes in the onsite reports, asserting a right to cross-examine Ms. Taylor-Asarnow about their contents. The court denied the motion for a mistrial and denied counsel’s later motion to dismiss. It struck Ms. Taylor-Asarnow’s testimony, but accepted all of the social reports into evidence. In addition, after the mother’s counsel objected a number of times to Mr. Luk’s testimony as being speculative or lacking foundation, the court instructed Mr. Luk to testify only as to what he knew. The mother’s attorney began her cross-examination of Mr. Luk on May 15. The hearing was then continued to June 26, 2007, when the mother’s attorney was given the opportunity to cross-examine Mr. Luk further, but declined to do so.

The mother contends the court’s actions deprived her of due process, complaining both that the juvenile court failed to grant a mistrial and that it considered evidence contained in the social reports prepared while Ms. Taylor-Asarnow was the primary caseworker. As an initial matter, we can see nothing improper or prejudicial about the court’s decision not to grant a mistrial. As the juvenile court did not consider any of Ms. Taylor-Asarnow’s testimony in reaching its decision, the mother’s rights were not affected by that testimony or by her inability to attack it through cross-examination. Ms. Taylor-Asarnow’s absence did not prevent the mother from cross-examining the remaining witness, Mr. Luk, nor did it have any effect on the mother’s ability to present her own evidence. The mother had over a month after learning of Ms. Taylor-Asarnow’s absence to prepare or revise her case. In sum, a mistrial would have accomplished nothing except, possibly, to delay matters. The issue, therefore, can be reduced to the question of whether the mother’s due process rights were violated by admitting the reports prepared by Ms. Taylor-Asarnow into evidence and using material in those reports as the basis for some of the other testimony and for the court’s decision.

Written reports prepared by a county welfare agency are admissible at the jurisdictional hearing only where the preparer of the report is available for cross-examination. (§ 355, subd. (b); In re Malinda S. (1990) 51 Cal.3d 368, 382-383 (Malinda S.) However, once jurisdiction over a minor has been established, the admissibility of such reports no longer is conditioned on the availability of the author. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 816; Andrea L. v. Superior Court (1998) 64 Cal.App.4th 1377, 1387, fn. 3; In re Corey A. (1991) 227 Cal.App.3d 339, 347.) The social reports, therefore, were admissible despite Ms. Taylor-Asarnow’s absence. Still, that a procedure complies with the relevant statutes and rules does not establish it complies with due process.

In Malinda S., the Supreme Court also was concerned about the weight that should be accorded evidence in a social report. While section 355 generally made such reports admissible, the court found it prohibited juvenile courts from basing decisions solely on evidence admissible only by reason of section 355 itself. (Malinda S., supra, 51 Cal.3d at p. 381.) That finding has been partially codified and partially modified by later legislation, which, with restrictions, allows the court to use evidence in a report to support a jurisdictional fact or finding in the absence of a timely objection. (§ 355, subd. (c); In re Lucero L. (2000) 22 Cal.4th 1227, 1241-1242.)

Division Three of this court considered parents’ due process rights in In re Thomas R. (2006) 145 Cal.App.4th 726 (Thomas R.). The juvenile court had required the parents to make an offer of proof if they were intending to contest the permanency planning selection hearing. The parents responded by asserting they intended to cross-examine the adoption specialist and prospective adoptive parents on the issue of adoptability. The juvenile court found the offer of proof to be insufficient, denied the parents’ request for a contested hearing, and terminated parental rights. (Id. at p. 730.) Division Three explained, “ ‘While a parent in a juvenile dependency proceeding has a due process right to a meaningful hearing with the opportunity to present evidence [citation], parents in dependency proceedings “are not entitled to full confrontation and cross-examination.” [Citation.] . . . .’ [¶] Different levels of due process protection apply at different stages of dependency proceedings. [Citations.] After reunification services are terminated and a section 366.26 hearing is set the focus shifts from the parent’s interest in reunification to the child’s need for permanency and stability. [Citation.] For this reason, we agree that cases holding a parent has an unfettered due process right to confront and cross-examine adverse witnesses at contested hearings held before the permanency planning stage do not compel the identical conclusion with respect to the section 366.26 hearing. But the parent retains a right to due process at the hearing under section 366.26, and due process ‘requires, in particular circumstances, a “meaningful opportunity to cross-examine and controvert the contents of the report” ’ if it is relevant to the issues before the court. [Citations.]” (Id. at p. 733, fn. & italics omitted.) It follows “that where the parents wish to test whether the agency has met its burden of proof at a section 366.26 hearing, they have a due process right to do so through examination of the agency’s witnesses.” (Id. at p. 734.)

Thomas R. supra, 145 Cal.App.4th 726, cannot be read as establishing a bright line rule that a parent’s due process rights are violated if the parent is unable to cross-examine each social worker whose findings or opinion is set out in the social report. To the contrary, Division Three expressly found parents do not have an “unfettered” right to confront and cross-examine witnesses at the permanency planning selection hearing. The question, ultimately, simply is whether a parent is provided with a meaningful opportunity to contest the evidence produced by the agency.

While cross-examining Ms. Taylor-Asarnow could have shed some light on her personal powers of observation and credibility, and might have allowed the mother to attack the basis for her conclusions, Ms. Taylor-Asarnow’s absence did not prevent the mother from exploring the validity of the reported matter. The basic issues of the child’s relationship with the mother, the child’s condition, the existence and circumstances of the prospective adoptive family and that family’s ability to respond to the child’s needs were thoroughly presented and examined. Mr. Luk, the adoption placement specialist, had personal knowledge of the child, the foster parents and the prospective adoptive family, and stated his own observations, opinions and conclusions. The mother focuses on two statements. First, Ms. Taylor-Asarnow stated the proposed adoptive family had reported (possibly to the foster mother) a very positive experience with the child and were very excited at the prospect of providing her with a permanent home. Second, Ms. Taylor-Asarnow stated the prospective adoptive parents asserted the child’s education plan could be duplicated in their district. Both statements were repeated by other witnesses, and the mother was able to, and did, contest their validity. In addition, nothing precluded the mother from producing her own evidence, if she felt Ms. Taylor-Asarnow’s assertions were incorrect. In Malinda S., supra, 51 Cal.3d 368, the Supreme Court rejected the argument that due process requires the county to bear the burden of calling all witnesses mentioned in the social study, even at the initial stages of the proceedings. The court found it is enough that a parent has been provided the opportunity to call the witnesses. (Id. at pp. 382-385.) Here, the foster parents and the prospective adoptive parents presumably were available, had the mother wished to subpoena them. Her due process rights were preserved.

II.

Determining Adoptability

The juvenile court may terminate parental rights only if it determines by clear and convincing evidence it is likely the child will be adopted within a reasonable time. (§ 366.26, subd. (c)(1); In re Carl R. (2005) 128 Cal.App.4th 1051, 1060 (Carl. R.).) “The question of adoptability posed at a section 366.26 hearing usually focuses on whether the child’s age, physical condition, and emotional state make it difficult to find a person willing to adopt that child. [Citation.] If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.] However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption. [Citation.]” (Carl R., at p.1061.)

On occasion, there is reason to consider the suitability of a family for adoption. As explained by the court in Carl R., some inquiry into the suitability of a prospective adoptive family is warranted when the child is severely disabled and will require intensive care for life. “A child who is specifically adoptable and who will need total care for life is at high risk of becoming a legal orphan if parental rights are terminated and the prospective adoptive family is later determined to be unsuitable. This could occur if the courts analyze only whether there is a legal impediment to adoption . . . . To avoid rendering a total needs child a legal orphan, the assessment of the adoptability of such a child must necessarily include some consideration of whether the prospective adoptive parents can meet that child’s needs, since if the prospective adoptive parents cannot meet the child’s needs, the child cannot properly be found to be adoptable.” (Carl R., supra, 128 Cal.App.4th at p. 1062, fn. omitted.) Review of a determination of adoptability is limited to whether the juvenile court’s findings are supported by substantial evidence. (Id. at p. 1061.)

Here, although the child is a total needs child, it is not at all clear she is only specifically adoptable. Mr. Luk located two prospective families within a six-month period, finding both to be strong candidates for adoption. He noted the general adoptability of disabled children varies greatly, but, based on the relative ease of locating the two families, believed it likely there were other families who would be interested in adopting this particular child. The child’s foster parents clearly are very attached to her, and it can be inferred they declined to adopt only because they knew their ages precluded them from providing lifelong care for her. By all accounts the child has an affectionate and engaging personality.

However, even assuming the child was adoptable only because of the interest of the prospective adoptive family, substantial evidence supports the juvenile court’s finding of adoptability. Carl R. does notrequire, as the mother suggests, that the Agency prove the prospective adoptive family will be able to meet the child’s needs. It requires only that the juvenile court give some consideration to whether the prospective adoptive parents can meet the child’s needs. (Carl R., supra, 128 Cal.App.4th at p. 1062.) Here, the evidence was that the prospective adoptive father is fully employed. The prospective adoptive mother is a trained paramedic. They have adopted and raised one special needs child and fostered at least two others. Their history and circumstances show they have an understanding of the legal, financial, emotional and time commitments such a child requires. They have cared for the child for several days, demonstrating their ability to do so. Even Dr. Roberto noted the affection and positive interaction between the child and the prospective adoptive parents. They have an educational plan for the child and will be able to meet her medical needs.

The mother complains that the evidence the prospective adoptive father was fully employed as a firefighter, and that the child was currently was receiving $2,855 per month and the family was eligible for adoption assistance funding, was insufficient to support a conclusion the family had adequate financial resources to provide for the child. We disagree.

The mother complains it has not been established that the prospective adoptive parents will be able to provide all of the educational programs the child enjoyed with her foster parents. Nothing in Carl R., or in any other cited case by the mother, or in logic, requires that the prospective adoptive parents present the best imaginable placement. To the contrary, the court in Carl R. specifically cautioned against allowing an inquiry into education plans to degenerate “into assessing which school districts are better or who could afford to send a child to the better private school. This is neither a necessary nor appropriate inquiry at a time when the court is conducting only a preliminary assessment of whether the child’s education needs [may be] met.” (Carl. R., supra, 128 Cal.App.4th at p. 1063.) The same holds true for any of the child’s other specific needs. Moreover, measuring the programs available to the prospective adoptive parents against those available to the foster parents is inappropriate, as long-term placement with the foster parents is not an available option.

In arguing the evidence does not support a finding of adoptability, the mother points out an adoptive parent should be a person willing to make a full emotional commitment to the child. (See In re Zeth S. (2003) 31 Cal.4th 396, 413, fn. 10.) She downplays all the evidence that the prospective adoptive family is willing, interested and able to care for the child, focusing instead on various statements or observations from which she draws negative inferences, complaining the Agency failed to produce additional evidence to counter her inferences. For example, the mother notes the prospective adoptive parents had not accepted placement by the time of the permanency planning hearing and did not appear on either May 15, 2007, or June 26, 2007, to demonstrate their interest in and commitment to the child. She points to the foster mother’s report that the prospective parents seemed to disappear for two weeks, and failed to return her calls. She complains that not all of the visits between the child and the prospective adoptive parents had gone well, pointing out the parents put the child to bed late one night so that she was cranky the next day. She notes the prospective adoptive parents told Dr. Roberto they became interested in adopting because they thought their granddaughter should have company, concluding this statement demonstrated their interest was in their granddaughter and not in the child. She then points to the prospective adoptive mother’s statement, after observing her granddaughter and foster daughter were paying more attention to the adults than to the child, “The other girls . . . are a little envious of all the attention [the child] gets.” The mother infers the prospective adoptive parents’ interest in adopting the child had “waned after they realized the ‘very high’ level of care which [the child] needed, realized that that ‘very high’ level would not only detract from the time they could spend with their granddaughter, but it might well [create] a negative rather than a positive effect on their granddaughter, causing her to feel resentment against [the child], and realized that they might not be able to adopt yet another special needs child to fulfill their goal of providing more than one companion for their granddaughter.”

We are interested only in whether substantial evidence supports the juvenile court’s finding, not whether there is some evidence or inference that contradicts it. We do not reweigh the evidence, evaluate the credibility of witnesses or resolve evidentiary conflicts. A judgment or finding will be upheld if it is supported by substantial evidence, even though substantial evidence to the contrary also exists and the trial court might have reached a different result had it believed other evidence. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228; and see In re B.D. (2008) 159 Cal.App.4th 1218, 1232; Carl R., supra, 128 Cal.App.4th at pp. 1061, 1065.) The question of legal impediment to adopt is a not an issue of law, as the mother asserts, but an issue of fact so that the ordinary standard of review attaches.

Here, there is evidence that supports the juvenile court’s findings and we therefore have no need to refute each of the mother’s points. Nonetheless, we are unwilling to allow some of her arguments to pass without mention. It is unfair to the prospective adoptive parents to suggest they are incapable of caring for the child because they put her to bed later than her usual bedtime one night and she was cranky the next day. It is equally unfair to use their explanation of how they became interested in adopting special needs children to suggest their only motive for wishing to adopt the child is to provide company for their granddaughter. Similarly, it cannot be concluded the prospective parents lost interest in the child because of what to all appearances seems to have been an indulgent acknowledgement that the other children were a bit envious of the attention the child was receiving from adults during a visit. In addition, the mother’s assertion that the prospective parents had lost interest once they realized how much care the child would need is pure conjecture. As Dr. Roberto’s report indicates, even though the parents did not visit in mid-to-late May, they were visiting the child with their other children in early June. It also seems a bit unfair to suggest the prospective adoptive parents had lost interest in the child because she might take their attention from their granddaughter, but then complain that they indicated an interest in adopting additional special needs children. In any event, at this preliminary assessment, it would have been inappropriate and unnecessary to worry that the prospective parents might adopt more children sometime in the future, and might therefore find it more difficult to provide care to the child.

The two-week absence might be explained by the fact the foster child in the prospective adoptive home suffered a stroke in mid-May. But whether that, or some other event, provides the explanation, or even if there is none, that the family was visiting again in June strongly suggests their interest in adopting the child had not flagged.

Finally, we do not agree that, at least in this case, the lack of a completed home study of the prospective family constituted a legal impediment to adoption. There is no statutory requirement for a home study, and the mother has cited no authority requiring one before parental rights may be terminated. It is necessary only that the Agency provide the court with information allowing the court to make a preliminary assessment of the eligibility and commitment of the prospective adoptive parents. (§§361.5, subd. (g)(1)(D); 366.21, subd. (i)(1)(D); 366.22, subd. (b)(1)(D); Carl. R., supra, 128 Cal.App.4th at pp. 1062-1063.) As set forth above, the Agency provided the court with ample information here. There may be a situation where the child clearly is only specifically adoptable, and the circumstances of the prospective adoptive family are such that a home study should be completed before parental rights are terminated, but this is not such a case. The prospective adoptive family already had adopted a special needs child and has fostered others, the Agency had reviewed a home study completed in connection with that adoption, and a home study worker in the prospective adoptive family’s area had visited their home and spoken with others who knew them and had stated her belief the family was suitable. Moreover, the evidence strongly suggests some other adoptive home will be found if for some reason the prospective adoptive family ultimately is found to be unsuitable.

The mother cites the recent case of In re B.D., supra, 159 Cal.App.4th 1218, where the social services agency believed it to be in the best interests of five siblings to be adopted as a group. The court there rejected the contention that the children, as a group, were adoptable simply because the agency had indentified one family that had expressed an interest in adopting a sibling group, pointing out “[t]he record shows the family did not have a foster care license or an approved adoptive home study,” and the family had little specific information about the children. (Id. at p. 1233.) We do not view this statement as finding the lack of a home study was a legal impediment to adoption. The court instead held, “Although the foster care and adoptive home studies for the family were in progress, we believe the absence of a foster care license or a preliminary assessment constitutes a legal impediment to adoption. It prevents a social worker from providing information about the children to the family, facilitating contact between the children and the family and placing the children in a predictive placement with the family.” (Id. at pp. 1233-1234.) In the present case, the prospective adoptive family was completely familiar with the child and her needs and the preliminary assessment had been done.

In conclusion, the record reflects that the court found the child to be adoptable only after considering whether the prospective adoptive family could meet the child’s needs and the record contains substantial evidence the prospective adoptive family can indeed meet those needs.

III.

Compliance with ICWA

“ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes and families by establishing certain minimum federal standards, distinct from state court standards, in juvenile dependency actions involving an Indian child. [Citation.] When a state court ‘knows or has reason to know that an Indian child is involved’ in a juvenile dependency proceeding, a duty to give notice under ICWA arises. [Citations.] Under ICWA, an ‘Indian child’ means ‘any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.’ [Citation.] The Indian status of the child need not be certain in order to trigger notice. [Citation.] The requisite notice enables the tribe and/or BIA [Bureau of Indian Affairs], in part, to investigate and determine whether the minor is an ‘Indian child.’ [Citation.]” (In re Gerardo A. (2004) 119 Cal.App.4th 988, 993-994 (Gerardo).)

On August 8, 2006, some months after the Agency had begun searching for an adoptive home for the child, the paternal great-grandmother told the caseworker the minor’s paternal grandfather was believed to be part Indian. The caseworker spoke with the paternal great-grandmother and paternal grandmother, who could provide no information other than the paternal grandfather’s name and their belief he belonged to a Pit River tribe. They had no information about birth dates or the names of any other ancestors. The Agency sent notice of the proceedings to the five Pit River tribes: Susanville Indian Rancheria, Alturas Rancheria, Redding Rancheria, Pit River Reservation and Round Valley Reservation. It also sent notice to the BIA. The notices stated the name of the paternal grandfather, the names of the parents and their birth dates and the name of the child and her birthdate.

By November 16, 2006, representatives from the Alturas Rancheria, the Susanville Indian Rancheria and the Round Valley Rancheria reported back that the child was not a descendent of anyone from their respective tribes or at least that neither she nor her father or paternal grandfather appeared to be eligible for membership in their respective tribes. The BIA wrote that notice had been received and any further response or intervention would be determined by the tribes themselves. The Redding Rancheria later wrote that neither the child nor anyone in her family qualified for tribe membership. The Pit River Reservation did not send a responding letter. However, the Agency’s notice was sent by certified mail, and the receipt was signed by a person the Agency was able to identify as the ICWA coordinator for that tribe. The caseworker reported she had spoken to that person in November 2006 and had left a follow-up message in January 2007. On February 15, 2007, the court, accepting that the tribes had received notice, ruled the child was not qualified as an Indian child under the ICWA. The mother claims the court’s ruling was error.

The Agency, citing In re S.B. (2005) 130 Cal.App.4th 1148 (S.B.), claims the mother waived her ICWA arguments by failing to raise the possibility of the child’s Indian heritage until late in the proceedings. The court there held a parent might waive the ICWA’s notice provisions as to the parent but reiterated settled law that a parent’s failure to raise notice issues in a timely manner, or at all, will not waive the tribe’s right to notice. (Id. at pp. 1159-1160.) As the tribe in that case actually had appeared and had protected its own interests, the mother, whose inaction constituted a waiver of her own rights, could not seek reversal because notice was inadequate. (Id. at pp. 1153, 1160.) The mother contends the Agency failed to provide the tribes with all the information it had or which it easily could have obtained, complaining the Agency failed to provide the name or telephone number of the paternal great-grandmother or any information about the paternal grandmother, and did not state the cities where the parents had been born. It is true that an agency should share any identifying Indian heritage information it has with the relevant tribes. (Gerardo, supra, 119 Cal.App.4th at p. 995.) Section 224.2, subd. (a)(5)(C), which codifies ICWA’s notice requirements, provides notice shall include “[a]ll names known of the Indian child’s biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known.” It also is true the notices sent here did not comply with the letter of these requirements. The failure to comply with the requirements, however, was harmless, as the child’s affiliation with a tribe, if any, was through the paternal grandfather. Additional information about the mother, the paternal grandmother or the paternal great-grandmother could not have added anything to a tribe’s investigation. The Agency already had obtained what little information those persons had and had forwarded it to the tribes. Similarly, the father’s place of birth could not have helped a tribe determine whether it had any record of the paternal grandfather.

Section 224.2 was not in effect when the paternal great-grandmother told the Agency about the child’s Indian heritage or when the notices were sent out, but because the section was in effect at the time the juvenile court ruled on the adequacy of ICWA notice, the court was required to apply it. (In re J.T. (2007) 154 Cal.App.4th 986, 991-992.)

The mother also complains the Agency failed to comply with section 224.2, subdivision (a)(2), which recites in part, “Notice to the tribe shall be to the tribal chairperson, unless the tribe has designated another agent for service.” The Agency sent notice to the tribes, but did not address notice to the tribal chairpersons or designated agents. The mother concedes the Agency’s failure was harmless as to the Pit River Reservation and the Susanville Indian Rancheria, recognizing the letter each tribe sent back to the Agency was signed by the appropriate representative. The letter sent by the Alturas Rancheria, however, was signed not by the tribe’s chairperson but by a “tribal administrator.” Similarly, the letter from the Round Valley Indian Tribe was signed by a person identified as “ICWA Assistant, Indian Child Welfare Office,” and the letter sent from the Redding Rancheria was signed by a person who identified herself as a representative of the tribe’s “Family & Children Services.” The mother contends it is possible the person sending the letter was not representing the tribe. In the absence of some reason to assume the contrary, and in light of the title of the persons writing the letters and their content, the mother’s contention is based on speculation that does not demonstrate a reasonable probability the mother would have enjoyed a more favorable result had the Agency complied with the letter of the notice requirements. The error is harmless. (See S.B., supra, 130 Cal.App.4th at p. 1162.)

The mother’s final contention is that the caseworker misled the court by asserting in her report that all responses from the tribes stated the child is not enrollable. As the mother points out, the letter from the Round Valley Indian Tribes recited, “We are sorry to inform you that according to our records we found the above named child is not a lineal descendent of those individuals listed on our Original Allotment book, Census book, or Membership book. [¶] If there is any other information or names of individuals that may be connected with these children, we would be more than willing to research further.” This response adequately conveyed the tribe had determined the child was not a member of the tribe and, based on the information the Agency was able to provide, further determined the child was not eligible for membership.

The court did not err in determining the child was not qualified as an Indian child under the ICWA.

CONCLUSION

The order terminating parental rights is affirmed.

We concur: MARCHIANO, P. J., SWAGER, J.


Summaries of

In re Nicole S.

California Court of Appeals, First District, First Division
Mar 19, 2008
No. A118372 (Cal. Ct. App. Mar. 19, 2008)
Case details for

In re Nicole S.

Case Details

Full title:ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. TRACY…

Court:California Court of Appeals, First District, First Division

Date published: Mar 19, 2008

Citations

No. A118372 (Cal. Ct. App. Mar. 19, 2008)