Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County Super. Ct. No. INJ017372. Timothy J. Heaslet, Judge.
Niccol Kording, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.
Leslie A. Barry, under appointment by the Court of Appeal, for Minors.
OPINION
MILLER, J.
Patricia M. (mother) appeals from an order terminating her parental rights to her daughters, Rachael Z. (born September 1993) and Ashley M. (born June 2005), pursuant to Welfare and Institutions Code section 366.26. She contends reversal is required because the juvenile court failed to comply with section 366.26, subdivision (h), as to Rachael’s wishes concerning a permanent plan, and because the court’s adoptability finding is not supported by substantial evidence. We agree with mother that the court was not adequately informed of Rachael’s wishes; that the adoption assessment prepared by the Department of Public Social Services (DPSS) failed to adequately assess the suitability of Rachael’s paternal grandmother so as to constitute substantial evidence of Rachael’s adoptability; and that either of these inadequacies mandates reversal of the order terminating parental rights. Additionally, we agree with mother as to her claims of noncompliance with the requirements of the Indian Child Welfare Act (ICWA) and conclude that reversal is required on that basis as well.
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2005, 12-year-old Rachael, and her two-month-old half-sister, Ashley, were removed from mother’s custody and placed in a shelter home located in Riverside County. A juvenile dependency petition was thereafter filed, alleging that mother had an untreated substance abuse problem, as evidenced by a positive test for methamphetamine, which “limits her ability to provide for the safety and well being of her children and creates a detrimental home environment.” The petition further alleged that Ashley’s father, James Q., had a criminal background and a history of substance abuse, and that Rachael’s father, Raymond Z., was incarcerated, with an unknown release date. Mother also had a significant child welfare history dating back to 1995, including allegations of general neglect and physical abuse, several of which had been substantiated.
A jurisdictional/dispositional hearing was held on November 1, 2005. After finding the allegations of the petition to be true, the court declared the children dependents and ordered the parents to participate in reunification services.
By the time of the six-month review hearing in May 2006, the girls had been placed with Rachael’s paternal grandparents (and have remained in their custody since that time). The social worker had recommended terminating reunification services, noting that none of the parents had made any effort to work on his or her service plans. Mother, who had been arrested in January 2006 for possessing false identification and incarcerated for a few weeks, was homeless, and her whereabouts, and those of James Q., were unknown. The court adopted the social worker’s recommendations, terminated services, and scheduled a permanency hearing for August 22, 2006.
On the day set for the hearing, Rachael was present in the courthouse, but her attorney waived her appearance for purposes of the hearing. At the request of Raymond Z.’s counsel, the hearing was continued to August 28, 2006, with no further notice required. Despite the continuance, the court made “adoptive findings” as set forth in DPSS’s most recent status review report.
When the matter proceeded on August 28th, Rachael did not appear, her attorney apparently having told Rachael’s grandparents that Rachael’s presence was not required that day. At the hearing, counsel for mother asked the court to establish a plan of legal guardianship as to both children. Counsel indicated that mother was then in a residential program, and that if she is unable to reunify at a later date, the guardian or DPSS can file a petition “requesting that the matter be upgraded to adoption at that time.” Counsel acknowledged that Rachael had written a letter to the court, indicating a desire to live with her sister and grandparents, but argued the letter was not the equivalent of a statement that she “agree[d] with adoption as her permanent plan.” Finally, mother’s counsel was emphatic in stating an objection to the sufficiency of DPSS’s report “in that it is silent as to the child’s wishes,” and while she did not expressly object to Rachael’s absence from the hearing, she did urge the court “to not proceed without having a good understanding of what [Rachael’s] wishes were, otherwise we are going to have a legal orphan if at [the] adoption hearing she says, no, I don’t want to be adopted, no one ever asked me.”
The handwritten letter, dated April 8, 2006, states: “Dear Judge: [¶] Hi, my name is Rachael Z[.]. I am 12 years old and have one sister. I know my mom has made many mistakes. I would want to live with my Dad, but if I can’t I would want to live with my Grandparents. They are the safest people I know. Even though my Grandma has arthritis she still cleans, cooks, and takes care of me and Ashley. Ever since I was little I’ve always wanted a baby sister to look up to me . . . .I don’t want to loose [sic] her. Loosing [sic] my sister, Ashley, would tear me apart. Since she was born I have gotten so attached to her. She even looks out the window waiting for me to come home from school. I know if you take Ashley away from me and my Grandparents she will be very sad too. I can’t imagen [sic] living [one] week without her. So all I ask your honor is to live with my sister and my Grandparents.”
In this regard, California Rules of Court, rule 5.730(f) provides, “At the hearing, each adoptive parent and the child, if 12 years of age or older, must execute Adoption Agreement (form ADOPT-210) in the presence of and with the acknowledgment of the court.”
Minors’ trial counsel, for her part, urged the court to keep the girls together regardless of which permanent plan was selected. She acknowledged that Rachael was “somewhat ambiguous, she’s very disappointed that mother didn’t reunify. That was her wish is to go back . . . with mother. [¶] However, more than that, she wants to stay with her sister. [S]he’s indicated that she would go along with the adoption, but that wasn’t necessarily what she wanted to have happen.” A short time later, counsel reiterated that Rachael “doesn’t want anything to happen where she will be separated from her sister. So from our [perspective] . . . we want both of them to go adoption . . . .”
The court inquired as to the possibility of proceeding with adoption for Ashley, and legal guardianship for Rachael, “and then at some point [Rachael] can decide if she wants to upgrade her situation from guardianship to adoption?” In response, the deputy county counsel asserted that minors’ counsel’s statement “solidif[ied]” DPSS’s recommendations in that Rachael’s statement she would “go along with [adoption]” indicated she was not objecting to it. Further, the deputy county counsel argued against legal guardianship, stating it was not in Rachael’s best interests to leave the case open so as to permit either parent to file a section 388 petition sometime in the future.
After hearing argument from counsel, and having considered the social worker’s reports, the preliminary adoption assessment, and Rachael’s letter, the court terminated parental rights. The court found that the children were adoptable, that none of the exceptions set forth in subdivision (c)(1) of section 366.26 applied, and that adoption was in the children’s best interests. In making its ruling, the court indicated “[t]he imperative is the age of the younger, the younger of the two, and absolutely, unequivocally, the statement of the 12 year old with her imperative as to staying united with the one year old, even though she has some obvious concerns and cares as to her mother, through her attorney, her imperative is to stay with her younger sibling.” The court also directed that the application of the current caretakers be given preference over any other applications.
DISCUSSION
A. The juvenile court terminated parental rights and selected a permanent plan of adoption without being adequately informed of Rachael’s wishes.
Focusing on the interplay between section 366.26, subdivision (h) and section 366.26, subdivision (c)(1)(B), mother maintains that because the juvenile court failed to acquire sufficient information regarding Rachael’s wishes, as mandated by subdivision (h), its finding that Rachael did not object to adoption, for purposes of subdivision (c)(1)(B), cannot stand. Specifically, she contends the court erred in not adhering to the provisions of sections 366.26, subdivision (h), with respect to Rachael’s wishes, and that Rachael’s statement in her letter that she wished to live with her grandparents, and not be separated from Ashley, is “not equivalent to an acquiescence to adoption,” for purposes of subdivision (c)(1)(B) of section 366.26.
Pursuant to section 366.26, subdivision (h)(1), the court “shall consider the wishes of the child and shall act in the best interests of the child.” Subdivision (h)(2) states: “In accordance with Section 349, the child shall be present in court if the child or the child’s counsel so requests or the court so orders. If the child is 10 years of age or older and is not present at a hearing held pursuant to this section, the court shall determine whether the minor was properly notified of his or her right to attend the hearing and inquire as to the reason why the child is not present.”
“Section 366.26, subdivision (c)(1)(B) is an exception to the Legislature’s preference for adoption. It permits the court to find termination of parental rights detrimental to a child if ‘[a] child 12 years of age or older objects to termination of parental rights.’” (In re Christopher L. (2006) 143 Cal.App.4th 1326, 1334 (Christopher L.).) Moreover, “[b]efore terminating parental rights, the juvenile court must consider the child’s wishes, to the extent that they are ascertainable. (§ 366.26, subd. (h); [citation].) The juvenile court should explore a child’s feelings toward his or her parents, foster parents, and prospective adoptive family. [Citations.] Evidence of a child’s wishes may, but need not, be in the form of direct testimony at the parental rights termination hearing; such evidence may also appear in the Agency’s reports. [Citations.]” (Ibid.)
With regard to subdivision (h) of section 366.26, we agree with mother that the court, having failed to inquire of Rachael as to her preference for adoption versus legal guardianship, erred in proceeding with a permanent plan without ensuring that it had sufficient information to assess her express wishes. For purposes of subdivision (h), the court may assess a child’s wishes by “direct formal testimony in court, informal direct communication with the court in chambers, reports prepared for the hearing, letters, telephone calls to the court, or electronic recordings.” (In re Joshua G. (2005) 129 Cal.App.4th 189, 201.) Here, the most telling piece of evidence pertaining to Rachael’s wishes was her letter to the court, urging that she be permitted to live with her sister and grandparents. The letter was silent, however, as to the concept of adoption. In fact, the only evidence regarding Rachael’s view of adoption of which we are aware is a statement in the social worker’s August 2006 report, indicating that Rachael, who was then seeing a counselor, was having “a very difficult time dealing with the abandonment of her mother and her father [and] with the concern of being adopted.” Contrary to DPSS’s assertion, the fact that Rachael at one time told the social worker that she did not want to be placed with Ashley’s aunt, does not mean that “if Rachael was able to clearly decline an adoption by one person, and then wished to not be adopted at all, she would have made this representation at some time during the proceedings.” We find nothing in the record indicating that Rachael “declined adoption” by Ashley’s relatives—only that “she does not want to go to people she does not know.”
However, we reject mother’s contentions the court failed to inquire as to why Rachael was not present at the continued hearing; and prohibited Rachael from testifying. Suffice it to state, inasmuch as Rachael’s presence at the initial hearing was expressly waived, we see no reason for the court to have inquired about her absence when the matter resumed six days later. Moreover, contrary to mother’s assertion, the court did not prohibit Rachael from testifying. After mother’s counsel urged the court not to proceed without having a good understanding of what Rachael’s wishes were, the deputy county counsel suggested the matter be placed on second call so that Rachael could be brought over and the court could inquire as to her desires. When minors’ counsel indicated that Rachael was not in attendance, the court directed counsel to talk to her client as to her client’s wishes. Counsel replied that she had already done so, and the court reached a decision without hearing directly from Rachael. However, there was no further request for Rachael’s presence.
DPSS relies on In re Christopher L., supra, 143 Cal.App.4th 1326 for the proposition that Rachael’s statements do not satisfy the requirements of section 366.26, subdivision (c)(1)(B), so as to preclude termination of parental rights. In that case, a mother challenged the termination of her parental rights, contending that her 14-year-old son “‘unequivocally’ testified he did not want to be adopted if it meant he could not see her again.” She argued the court was obligated, in light of her son’s testimony, to apply the child-objection exception without further consideration of the record. Applying the substantial evidence test (id. at p. 1333), the reviewing court was unable to say that Christopher “unequivocally” objected to the termination of parental rights. Rather, it found that Christopher repeatedly said he wanted to be adopted, that he was “okay” with living with his aunt and uncle until he was an adult, and when asked where he wanted to live, he said with his aunt and uncle. However, he did say he did not want to be adopted if it meant he could never again see his mother, and indicated that he would like to see her again. Thus, the court concluded “the statements appear to reveal an internal conflict between his hope to be adopted and live in a stable and loving environment, and his hope to see [his mother] again. Even though Christopher wants to see [his mother] again, he repeatedly expressed his hope to be adopted and live with his sister under the care of his aunt and uncle. [¶] We do not consider each of Christopher’s statements in a vacuum. Our review is deferential. [Citation.] . . . Given the deference we must accord to a juvenile court’s factual findings, it was reasonable for the court to resolve conflicts in favor of finding Christopher favored adoption. We therefore do not construe Christopher’s wish to continue to see [his mother] as undermining or being contrary to his wish to be adopted by his aunt and uncle. The evidence afforded the juvenile court a reasonable basis for ascertaining Christopher’s wishes . . . . [Citation.]” (Id. at p. 1335.)
Relying on Christopher L., DPSS contends that Rachael’s “wishes” should be viewed in conjunction with the facts of this case—that she has known her paternal grandparents all her life, is thriving in school, and has a great desire to continue to live with her sister. DPSS further contends that Rachael’s preferences about her birth parents do not constitute an objection to termination of parental rights and that her statements to the effect she wishes to live with her paternal grandparents are evidence of her wishes.
DPSS is asking us to speculate that Rachael would be perfectly happy if she were adopted by her grandparents so long as she and Ashley can continue to be together. We decline to do so. Indeed, there is no substantial evidence that Rachael knew what it meant to be adopted. While it appears that the social worker “attempted” to explain to her the difference between adoption and guardianship, nothing in the record tells us whether the attempt was successful. Nor is there any indication Rachael was told that if she was adopted she might never again see her mother or father. And while it is clear from the record that the social worker told the grandparents to discuss adoption among themselves, which they apparently did, we have no way of knowing if they ever talked about the subject to Rachael.
It is curious that mother makes no attempt in her reply brief to distinguish Christopher L. Indeed, there are significant distinctions between the two cases. Most importantly, Christopher testified he would be “happy” to be “adopted” by his aunt and uncle and that it would be “okay” to remain in their custody until he is an adult. In contrast, not only do we not have the benefit of testimony from Rachael, but also, there is absolutely nothing in the record indicating her personal viewpoint on adoption, i.e., either that she wished to be adopted or that she did not wish to be adopted, or whether she had any idea that adoption meant she might never again see her parents. The closest thing to a perspective about adoption is what Rachael’s trial counsel told the court, i.e., that Rachael’s wish was to go back with her mother, but “more than that, she wants to stay with her sister. [S]he’s . . . indicated that she would go along with the adoption, but that wasn’t necessarily what she wanted to have happen.” Counsel then said that from her own perspective, “we want both of them to go adoption . . . .” However, in the absence of evidence that Rachael was told that she could stay with her grandparents under a legal guardianship and still live with Ashley, there is no assurance that what Rachael’s trial counsel said in court was reflective of what Rachael truly wanted.
We agree with mother that because a 12-year-old child is permitted to veto an adoption, it was incumbent on the court to ascertain Rachael’s wishes. It was clear from Rachael’s letter that, if at all possible, she wanted to return to one of her parents, and that if she could not, she wanted to live with her grandparents. More importantly, she did not want to be separated from Ashley. And while it was not then possible for Rachael to live with a parent, from our review of the record we would be hard pressed to find that her wish was not to eventually reunify with either parent and to continue the parent-child relationship—a goal which could have been accomplished by establishing a legal guardianship. In fact, it is clear from the record that the preference of the grandparents was to adopt Ashley and to be Rachael’s legal guardians. In this regard, mother may be correct that the least detrimental alternative would have been a permanent plan of legal guardianship. As she puts it, DPSS “knew Rachael did not have to be separated from Ashley and could still have a permanent plan of legal guardianship as the plan was to keep both girls with Rachael’s paternal grandparents.”
We therefore conclude that because the court did not ascertain Rachael’s wishes, as it was required to do, it had no basis upon which to find that she did not object to adoption. Accordingly, the court’s finding that the subdivision (c)(1)(B) exception did not apply was not supported by substantial evidence.
In light of our conclusion, we need not determine whether, for purposes of subdivision (c)(1)(B), a child who is 12 years of age or older must expressly object to adoption, or whether the objection may be implied by the child’s conduct, demeanor, or other language indicating that he or she does not wish to be adopted. Nor do we address the question of whether Rachael’s purported statement that she would “go along with adoption,” as related to the court by her trial counsel, is equivalent to a statement that she does not object to adoption so as to withstand application of this statutory exception to terminating parental rights.
B. Even if we were to conclude that the juvenile court properly considered Rachael’s wishes, reversal would be required because the adoptability finding as to Rachael and Ashley is not supported by substantial evidence.
Whether a child is likely to be adopted is the “pivotal question” at a section 366.26 hearing. (In re Tamneisha S. (1997) 58 Cal.App.4th 798, 804.) “In order for a juvenile court to terminate parental rights under section 366.26, the court must find by clear and convincing evidence that it is likely that the child will be adopted. [Citation.] We review the juvenile court’s order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [Rachael was] likely to be adopted. [Citations.] ‘Clear and convincing’ evidence requires a finding of high probability. The evidence must be so clear as to leave no substantial doubt. [Citation.]” (In re Asia L. (2003) 107 Cal.App.4th 498, 509-510.) We review the record in the light most favorable to the lower court’s order and affirm that order even if there is evidence supporting a contrary finding. (In re Casey D. (1999) 70 Cal.App.4th 38, 53.)
The likelihood of adoption is often discerned from an adoption assessment report. The purpose of such a report is essentially to provide the juvenile court with information necessary to determine whether the permanent plan selected is in the child’s best interests. (In re Dakota S. (2000) 85 Cal.App.4th 494, 496.) An assessment report need not be entirely complete as long as it is in substantial compliance with statutory requirements. (In re John F. (1994) 27 Cal.App.4th 1365, 1378.) Where an assessment is deemed incomplete, the reviewing court looks at the totality of the evidence before it; deficiencies go to the weight of the evidence and may prove insignificant. (Ibid.)
In determining a child’s adoptability, pertinent factors include whether the child’s age, physical condition, and emotional state make it difficult to find a person or family willing to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) Thus, because the issue focuses on the child rather than the prospective adoptive family, a prospective adoptive parent’s suitability is not, as a general rule, relevant to an adoptability finding. (In re Scott M. (1993) 13 Cal.App.4th 839, 844.) Indeed, a finding that a child is likely to be adopted does not require the child’s placement in the home of a prospective adoptive parent, or even that one be “waiting in the wings.” (In re Jennilee T. (1992) 3 Cal.App.4th 212, 223, fn. 11.) As we shall explain, however, the present case is an exception to the rule.
In challenging the sufficiency of the evidence to support the juvenile court’s finding that Rachael is adoptable, mother acknowledges that Rachael is “generally adoptable merely because she is healthy, developmentally and mentally normal and has no underlying behavioral problem that makes her unadoptable.” However, she contends that because Rachael is opposed to living with anyone other than her parents or her paternal grandparents and because her adoptability “hinges on the prospective adoptive parents, as well as her wishes, which are unclear in the assessment, the incomplete adoption assessment leaves the permanency of both Rachael and Ashley unsettled.” Her position is sound. Accordingly, because, as we shall explain, the suitability of the paternal grandmother vis-à-vis her arthritis and other medical conditions was not firmly established at the time DPSS’s adoption assessment was prepared, the court’s adoptability finding cannot stand. But first, we dispose of DPSS’s position that mother waived her challenge to the assessment report.
Minors’ appellate counsel agrees with mother that the suitability of the prospective adoptive parents is at issue. She also agrees with mother that certain information was missing from the adoption assessment. However, she asserts there was substantial compliance with the statutory mandate and that the adoptability finding should stand. With regard to the grandmother’s medical condition, she takes the position that the grandmother’s arthritis, which she maintains was “treated or treatable with medication,” is a “non-issue.” We disagree with her assessment of the record.
Citing In re Crystal J. (1993) 12 Cal.App.4th 407, 411, among other cases, DPSS contends that, although mother took the position the report omitted a statement about Rachael’s wishes, she did not challenge any other inadequacy in the report, such as information with regard to the prospective adoptive parents. Mother responds there was no waiver because she expressly challenged the adequacy of the report, asserting that it excluded information about Rachael’s wishes, which in turn pertains to the appropriateness of the prospective adoptive parents. Without belaboring the point, we conclude that mother’s objections below were enough to preserve the issue on appeal. Indeed, mother’s trial counsel made it sufficiently clear that she was challenging a proposed finding of adoptability insofar as the suitability of the adoptive parents was concerned. In any event, we adhere to the rationale of In re Brian P. (2002) 99 Cal.App.4th 616, 622-623, where the Court of Appeal held that a failure to object in the trial court does not constitute a waiver or forfeiture on appeal of a right to challenge the sufficiency of the evidence to support the juvenile court’s adoptability finding. (See also In re Gregory A. (2005) 126 Cal.App.4th 1554, 1560.) Thus, although mother’s challenge is, for the most part, directed at the assessment report itself, the ultimate deficiency of which she complains is the lack of evidence to support the court’s finding that Rachael is adoptable. Moreover, while mother does not directly challenge the adoptability finding with regard to Ashley (who is undoubtedly adoptable), she contends the failure to have complete information about the paternal grandmother’s arthritic condition and potential inability to care for the children, particularly, Ashley, impacts a finding of adoptability as to both girls.
Turning to the merits of mother’s position, we note that the juvenile court found the children to be adoptable based upon the written reports and the adoption assessment. Mother contends the evidence does not support the adoptability finding as to both children, based on the lack of specific information in the adoption assessment regarding the prospective adoptive parents, as well as the lack of information of Rachael’s wishes. We agree.
In re Jerome D. (2000) 84 Cal.App.4th 1200, upon which mother relies, is instructive. There, the juvenile court’s adoptability finding was reversed because the adoption assessment had not addressed the prospective adoptive parent’s criminal and child welfare history, as statutorily required. (Id. at p. 1205.) The finding, said the appellate court, was based solely on the person’s willingness to adopt, which was not enough. Thus, the court found that without the missing information, there was insufficient clear and convincing evidence to support the adoptability finding.
And so it is here. Contrary to DPSS’s assertion, the adoption assessment is silent with regard to the apparent severity of the grandmother’s arthritis and its impact on her ability to care for Ashley. The only reference in the assessment report to this medical condition is that the grandmother “takes Motrin for arthritis.” Nothing else.
The grandmother’s arthritic condition was well known to DPSS. The record discloses that as of May 1, 2006, the grandparents told the social worker they wanted to adopt both girls. The social worker then spoke with them about the grandmother’s arthritis and her need for help from Rachael. The grandmother responded that she does not delegate any parental responsibilities to Rachael, noting that Rachael “chooses to care for her sister when she gets home.”
However, in her report dated July 26, 2006, the social worker wrote: “I recommend the placement of the girls in the S[.] home with the plan of extended family members helping with support. Mrs. S[.] has moderate to severe arthritis in her back and legs which may affect her ability to care for the children, specifically Ashley. Both Mr. and Mrs. S[.] emphasize that they want to keep the girls together and adopt Ashley; they are bonded to her. They would like to see the father, Raymond Z[.], have the opportunity to reunify with Rachael if it is not too late. Meanwhile, they would like to take guardianship of Rachael.” (Italics added.)
Nonetheless, the adoption assessment, which was apparently prepared by a different social worker, is silent with regard to any potential inability of the grandmother to care for Ashley. The assessment report states only that “[t]he prospective adoptive parents appear to be in reasonable health.”
As a result of this deficiency in the report, and the discrepancy in the evidence, the juvenile court erred in finding the children adoptable and its order terminating parental rights must therefore be reversed. As mother asserts, if the order is allowed to stand, and if the results of the grandmother’s physical examination is consistent with the social worker’s earlier concerns, Rachael will be placed “in a position of potentially either losing her sibling, Ashley, with whom she is strongly bonded, or being placed with Ashley’s paternal aunt.”
C. Reversal is required by reason of noncompliance with the ICWA’s notice requirements.
At the detention hearing held on September 26, 2005, James Q., Ashley’s father, filed a form JV-130, indicating that he may have Cherokee Indian ancestry. Mother’s form JV-130 filed the same day indicated that as far as she knew she had no Indian ancestry. On October 12, 2005, notices were sent to United Keetoowah Band of Cherokee Indians, Eastern Band of Cherokee Indians, Cherokee Nation of Oklahoma, ICF, and the Bureau of Indian Affairs. In November, DPSS received replies from two of the noticed tribes, Eastern Band of Cherokee Indians and Cherokee Nation of Oklahoma, both indicating that Ashley was not an Indian child. At a status review hearing on May 1, 2006, the court made a finding that the ICWA did not apply.
Mother contends DPSS failed to comply with the ICWA’s notice requirements because it attached neither copies of the certified mail return of service forms or copies of signed return receipt cards. Moreover, although replies were received from two of the tribes, DPSS did not receive a response from the United Keetoowah Band of Cherokee Indians, ICF, or the BIA. In light of the absence of evidence that the notices were received, the record does not support a finding that proper notice was given. (In re Asia L., supra, 107 Cal.App.4th at pp. 507-508; In re Karla C. (2003) 113 Cal.App.4th 166, 178-179.)
DPSS concedes that its failure to submit proof that the notices were sent by certified mail or that any of the tribes had actually received notices may require a reversal of the termination order. (Cal. Rules of Court, rule 5.664(f).) However, it contends that reversal is required only with regard to Ashley and for a limited purpose only.
As for Rachael, DPSS concedes that it failed to direct Rachael’s father to complete a form JV-130 in accordance with rule 5.664(d)(3). Nonetheless, it maintains that it satisfied its duty to inquire into Rachael’s possible Indian heritage. Citing In re Aaliyah G. (2003) 109 Cal.App.4th 939 and In re S.B. (2005) 130 Cal.App.4th 1148, it contends “it is fairly inferable that the social worker made the necessary inquiry during her interview of Rachael’s father and that his responses did not change the status of the ICWA findings made earlier in the case.” In those cases, the appellate court rejected ICWA noncompliance arguments, finding that indications in a social services report that the ICWA does not apply, without objection, creates an inference that the agency performed its duty to make an inquiry and concluded that there was no Indian heritage. Alternatively, DPSS contends that even if its duty was not satisfied, any error is harmless. (In re S.B., supra, at p. 1162.)
We adhere to the rationale of In re J.N. (2006) 138 Cal.App.4th 450, 460-461. There, the reviewing court found that where an agency concedes that a parent was not asked to complete a form JV-130, in the absence of any affirmative evidence that an inquiry was made, the appellate court should not speculate as to what the response might have been. Thus, and because we are already reversing on other grounds, we believe it would be prudent on remand to require the court to inquire as to Rachael’s father as well as to ensure compliance with the ICWA with regard to Ashley’s father.
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded to the juvenile court with directions to ensure compliance with the requirements of the ICWA, to implement the preparation of a current adoption assessment, and to conduct a new permanency hearing.
I concur: KING, J.
RAMIREZ, P.J., Dissenting.
Today my colleagues reverse an order terminating a mother’s parental rights and paving the way for her two daughters, now ages two and 14, to be adopted by loving grandparents. This because Rachael never said the magic words “I choose adoption over guardianship” and despite her heartfelt and consistently repeated pleas that, above all else, she not be separated from her baby sister. It is clear to me from this record that: 1) Rachael was unequivocal that her first priority was to be in a permanent placement with Ashley; and 2) any order short of terminating parental rights and setting adoption as the permanent plan, with preference to the grandparents, would leave these children vulnerable to being separated, against Rachael’s unambiguous (“[it] would tear me apart”) and oft-expressed wish that she and Ashley remain together. Therefore, I respectfully dissent.
Welfare and Institutions Code section 366.26, subdivision (h)(1), states that the juvenile court “shall consider the wishes of the child and shall act in the best interests of the child” at a hearing at which it will select a permanent plan and decide whether to terminate parental rights. The majority concludes that the court did not have enough information to assess Rachael’s express wishes because it did not specifically ask her whether she preferred adoption or legal guardianship. I believe this is a hyper-technical reading of both the statute and this record. The record reveals that, while Rachael was disappointed that her mother did not reunify and that she could not be placed with her father, she told everyone who would listen that, no matter what, she did not want to be separated from her sister Ashley, whom she adores and who adores her.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
In her April 8, 2006, letter to the juvenile court, which the majority quotes in full, Rachael shares her sadness at not being reunited with her mother. She also seems to realize that she cannot be placed with her father. The bulk of the letter, however, describes in touching detail Rachael’s close reciprocal relationship with Ashley and her primary fear that they could at some point be separated. Rachael concludes “So all I ask your honor is to live with my sister and my grandparents.” Rachael presumably wrote this letter in anticipation of the six-month review hearing set for May 1, 2006, which Rachael also asked to attend. Rachael waited out in the hall during this hearing and it appears the court adopted the social worker’s report without hearing from Rachael. Rachael was also present at the courthouse for the section 366.26 hearing set for August 22, 2006, but her attorney waived her presence and the hearing was continued to August 28.
In addition to Rachael’s letter, the juvenile court had before it the statement of the minors’ counsel, which was completely consistent with the wishes and concerns that Rachael had expressed in her letter. Counsel for Rachael and Ashley conveyed to the court that Rachael’s first choice would have been for her and Ashley to reunify with their mother, but “more than that, she wants to stay with her sister.” The minors’ counsel indicated that Rachael would go along with the plan of adoption if it meant that she and her sister would be assured of staying together. The court considered terminating parental rights and setting adoption as the permanent plan for Ashley, while initially selecting guardianship for Rachael. However, counsel for DPSS pointed out that a plan of guardianship for Rachael would make it possible for mother or Rachael’s father to later come forward with a section 388 petition seeking placement or reunification services, and that this could result in Rachael being permanently separated from Ashley. Minors’ counsel then reiterated “She doesn’t want anything to happen where she will be separated from her sister.” Based on this preference that Rachael had consistently expressed, both in her letter and in her conversations with counsel, the court quite reasonably concluded that Rachael’s “imperative is to stay with her younger sibling” and that adoption of both children by the grandparents was the best way to achieve that imperative.
I disagree with the majority’s assertion that it would be pure speculation to conclude that Rachael would be happy to be adopted by her grandparents as long as she and Ashley could be together. This is exactly what the minors’ counsel told the court—that Rachael’s first choice was that she and Ashley be returned to her mother, but given that mother hadn’t reunified “ . . . more than that, she wants to stay with her sister. So she’s - - indicated that she would go along with the adoption.” Again, this also reflects what Rachael told the court in her letter—that the worst possible outcome would be to be separated from her sister. Given that our review of this case is to be deferential, and that it is the juvenile court’s task to determine the evidence that accurately represents a minor’s state of mind regarding adoption (see In re Christopher L. (2006)143 Cal.App.4th 1326, 1335) I would hold that the juvenile court had before it sufficient information, in the form of Rachael’s letter and the representations of her attorney, to determine that Rachael did not object to adoption because it would achieve her very clearly expressed primary goal—that she be permanently placed with her sister Ashley.
I also disagree with the majority’s conclusion that the adoptability finding is not supported by substantial evidence. I do agree that the adoption assessment report is incomplete as to the severity of the grandmother’s arthritis and its impact on her ability to care for Ashley. However, the majority acknowledges that where, as here, the assessment report is incomplete, we can review the totality of the evidence, including the written status review reports, to determine whether the record contains substantial evidence from which the juvenile court could find clear and convincing evidence that Rachael and Ashley were likely to be adopted. (See In re Asia L. (2003)107 Cal.App.4th 498, 509-510.)
Here, the children’s regular social worker specifically addressed the grandmother’s arthritis and her ability to care for Ashley in the section 366.26 report that was prepared at the approximately same time as the adoption assessment report. In the portion of the section 366.26 report entitled “Analysis of the Likelihood of Adoption and Proposed Permanent Plan,” the social worker recognized that the grandmother “has moderate to severe arthritis in her back and legs which may affect her ability to care for the children, specifically Ashley.” However, given this potential obstacle to adoption, the social worker proposed a solution: “I recommend the placement of the girls in the [grandparents’] home with the plan of extended family members helping with support.” The adoption assessment certainly would have been more perfect had it included the results of a medical exam offering more details about grandmother’s arthritis and her ability to care for Ashley. However, as stated above, the section 366.26 report already acknowledged that the grandmother’s arthritis as “moderate to severe” and that it affected her ability to physically care for Ashley. The report also placed before the juvenile court a possible solution in the form of help from extended family, and previous reports had detailed the closeness between Rachael and Ashley that included Rachael choosing to help care for Ashley each day when she gets home from school. For these reasons, I respectfully disagree with the majority’s decision to reverse on this issue.
The majority also reverses on the ICWA notice issue for the limited purpose of directing the juvenile court to ensure compliance with the requirements of ICWA. I agree with the principles set forth in In re S.B. (2005) 130 Cal.App.4th 1148, 1162 regarding harmless error and the appellant’s burden to establish prejudice from any error resulting from the failure to comply with a higher state standard. However, I do not object to a limited reversal in this case solely to endure compliance with the requirements of ICWA.