Opinion
NOT TO BE PUBLISHED
Super. Ct. No. JVSQ07-0000002
OPINION
CANTIL-SAKAUYE, J.
M.L., the mother of one-year-old R.L., appeals from an order of the Yuba County Juvenile Court terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Mother contends there was insufficient evidence that two Indian tribes were properly notified of the proceedings pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), and insufficient evidence that it is likely the child would be adopted. We shall remand only for further ICWA proceedings.
Hereafter, undesignated statutory references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2007, the Yuba County Health and Human Services Department (hereafter the Department) filed a petition alleging that then-six-month-old R.L. was within the provisions of section 300, subdivision (b), in that:
(1) The mother had used methamphetamine while pregnant with R.L. and had suffered a heart attack due to drug use;
(2) As recently as December 2006, the mother had admitted that her boyfriend had told her that he wanted to have sex with R.L. and that she believed the boyfriend would molest R.L.;
(3) The mother had signed an agreement to participate in voluntary family maintenance services and to continue taking batterers treatment classes that were required by her grant of probation; she later was arrested for violating probation by failing to attend the required classes;
(4) The mother recanted her statement that the boyfriend wanted to have sex with R.L. The mother later admitted that she and R.L. had spent a night in the same bed with the boyfriend;
(5) The mother admitted that she needs help remembering to take her insulin. On two occasions she had forgotten to take her insulin for two days; one of the incidents resulted in her hospitalization. R.L. was in her care on both occasions. When asked what would happen if her insulin were not taken, the mother stated that she could have a heart attack or a stroke, pass out, or die.
At a detention hearing in January 2007, the mother’s counsel submitted on the verified petition and detention report. R.L. was ordered detained.
At a jurisdiction hearing in February 2007, all parties submitted on the basis of the social worker’s report. The juvenile court found by a preponderance of the evidence that the petition’s allegations were true.
In a February 2007 disposition report, the social worker recommended that the mother not receive reunification services due to her incarceration for two years on a probation violation. (§ 361.5, subd. (e)(1).)
The disposition report included the following information on R.L.:
“Medical: [¶] [R.L.] received a [medical examination and] was determined to be a well baby. No health problems were identified. [R.L.’s] immunizations are up to date. [R.L.] is too young to visit the dentist.
“Developmental: [¶] [R.L.] appears to be developmentally on target. As [R.L.] continues to grow and change her development should be monitored closely as several of her family members, including her mother, suffer from developmental disabilities.
“Mental & Emotional Status: [¶] [R.L.] has not exhibited any behaviors that indicated mental or emotional problems. [R.L.] seems to have settled into her foster home and appears to be very comfortable around her foster parents and other children in the home. [R.L.] exhibits healthy sleeping and eating patterns.”
The juvenile court found by clear and convincing evidence that provision of reunification services to the mother would be detrimental to R.L. In making that finding, the court considered R.L.’s age, the degree of parent-child bonding, the length of the mother’s prison sentence, the nature of her crime, the nature of the needed treatment, and the degree of detriment to R.L. if services were not offered.
In June 2007, a section 366.26 hearing was held. The section 366.26 report included the following information on R.L.:
“Medical: [¶] [R.L.] was seen [for] physical exams [in January 2007 and March 2007]. [R.L.] was determined to be a well child with no problems noted at the time of her exam. She also received a medical exam [in April] 2007. [R.L.] had a mild ear infection at that time and was prescribed antibiotics. Her condition quickly cleared up according to her foster parents. [R.L.’s] immunizations are up to date. [R.L.] has not received a dental exam due to her tender age.
“Developmental: [¶] [R.L.] suffers from no developmental delays. She has made developmental gains appropriate to her age. She is currently learning to walk and is able to take a few steps on her own without support. She easily pulls herself up and crawls throughout the home. She plays with toys and can manipulate objects with appropriate dexterity. [R.L.] enjoys playing with other children. She is learning to talk and can say, ‘mama,’ ‘papa,’ ‘bye bye’ and several other words. [R.L.] waved bye, laughs and babbles. She loves to eat and is not a picky eater. Her sleep patterns are sound. She sleeps undisturbed throughout the night and takes her naps everyday.
“Mental & Emotional Status: [¶] [R.L.] is [a] delightful almost one year old. Her foster parents describe her as a happy baby who seldom fusses. When [R.L.] was initially placed she cried a lot during the day and would wake up crying at night. She no longer does this and seems to have adjusted quite well. [R.L.] is very engaging. She is interested in the people and environment around her. She is playful and sweet. The foster parents say that sometimes when [R.L.] wants something she cannot have she gets a mad look on her face and makes it clear she is not happy, but she gets over it quickly.
“Placement History: [¶] . . . [¶] [R.L.] has been placed in the same foster home since her original placement. She has done well in her current placement. Her medical, physical and emotional needs have been consistently met. [R.L.] is very comfortable in the presence of her foster parents. The [sic] are playful with her, speak of her in positive terms and show her affection. The foster parents love having her in their home. As much as they adore [R.L.], they do not wish to adopt her. The foster parents are an older couple who feel they can best serve children in the role of foster parents.”
An adoption assessment prepared by the state Department of Social Services (DSS) concluded that R.L. was adoptable and recommended that the court order termination of parental rights and a permanent plan of adoption. The social worker concurred with that recommendation.
The adoption assessment noted that R.L. “appears to have an emotional connection to her caretakers as exhibited by her wanting the caretakers to hold her, becoming upset when they do not respond to her, and seeking them out for assurance.”
The adoption assessment also stated, “[R.L.] is an eleven-month-old adoptable child who would benefit from the establishment of a permanent parent/child relationship with an adoptive family. [R.L.’s] caretakers do not wish to adopt. [¶] The California Department of Social Services has not yet identified a specific family suitable for adoption of the child. The Department is confident that a suitable adoptive family will be found.”
At the section 366.26 hearing, the mother’s counsel requested that the juvenile court not follow the recommendations for termination of parental rights and a permanent plan of adoption. Counsel conceded that he did not have any evidence to present regarding any of the statutory circumstances under which termination of parental rights would be detrimental. (§ 366.26, subd. (c)(1).)
The juvenile court found by clear and convincing evidence that it is likely R.L. would be adopted. The mother’s parental rights were terminated.
DISCUSSION
I.
The mother contends the section 366.26 orders must be reversed because there was no evidence that the Pascua Yaqui Tribe and the Blackfeet Tribe of Montana were properly notified of the hearing. We shall remand for further ICWA proceedings.
Background
At the outset of the proceeding, the mother advised the Department that she may have Indian ancestry. She also signed a JV-130 form indicating that she may have Indian ancestry. The detention report, jurisdiction report, disposition report, selection and implementation report, and state Department of Social Services adoption assessment consistently reflect that the mother does not know what her tribal affiliation might be.
Although there is no documentation of the mother claiming affiliation with any particular tribe, the record contains a photocopy of a United States Postal Service “Domestic Return Receipt” indicating the receipt of mail by the Pascua Yaqui Tribal Council in Tucson, Arizona. The receipt is dated October 16, 2006, nearly three months prior to the January 5, 2007, commencement of this case. The record does not reveal what documents had been received by the tribe or whether they had any relevance to these proceedings. No ICWA notice specifically related to this proceeding was sent to the Pascua Yaqui Tribal Council.
A JV-135 notice form sent to the Bureau of Indian Affairs (BIA) for the selection and implementation hearing contained checked boxes indicating that R.L.’s maternal grandmother, maternal grandfather, and maternal great-grandmother were affiliated with the “Blackfeet Tribe, Blackfeet, Continental U.S. Indian Tribes.” However, the record does not reflect that ICWA notice related to this proceeding was ever sent to the Blackfeet Tribe itself.
On its face, the notice sent to the BIA suggests the juvenile court or social worker knew or had reason to know that the mother and R.L. may be eligible for membership in the Blackfeet Tribe. (§ 224.2, subd. (a).) If the mother became aware of Blackfeet affiliation and enrolled in the tribe, her enrollment could make her child the “biological child of a member of an Indian tribe,” who is “eligible for membership in” the tribe. (25 U.S.C. § 1903(4)(b).) Thus, the notice issue is not moot simply because the mother has not otherwise indicated any tribal affiliation.
Analysis
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.) To facilitate participation, notice of the pending proceeding and the right to intervene must be sent to the tribe or to the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C. § 1912; § 224.2, subd. (a).) Once notice is provided, it must be sent for each subsequent hearing unless the juvenile court determines that the ICWA does not apply under the facts before it. (§ 224.2, subd. (b); In re Marinna J. (2001) 90 Cal.App.4th 731, 736.)
In her opening brief, the mother contended the order terminating her parental rights must be reversed because the record contains no evidence of ICWA notice having been sent to the Pascua Yaqui Tribe or the Blackfeet tribe.
In its brief, the Department responds that the notice received by the Pascua Yaqui Tribal Council was received almost three months before R.L. was detained. The Department effectively contends that the notice has no relevance to this case.
The Department further responds that R.L.’s ancestors are not members of the Blackfeet Tribe, and that the Blackfeet Tribe was included in the notice sent to BIA due to clerical error. To support its claim of error, the Department has attached to its brief the October 2007 declaration of the legal office assistant who prepared the notice. The declaration asserts that the computer system that generated the notice is incapable of producing a notice in cases where tribal affiliation is unknown, and that the references to the Blackfeet Tribe had been inserted for the sole purpose of generating the document.
In her reply brief, the mother objects that the office assistant’s declaration is not properly before this court because it is new evidence that was not before the juvenile court and is not a proper subject of judicial notice. We agree.
“[A]ppellate courts rarely accept postjudgment evidence. ‘It has long been the general rule and understanding that “an appeal reviews the correctness of a judgment as of the time of its rendition, upon a record of matters which were before the trial court for its consideration.” [Citation.] This rule reflects an “essential distinction between the trial and the appellate court . . . that it is the province of the trial court to decide questions of fact and of the appellate court to decide questions of law . . . .” [Citation.] The rule promotes the orderly settling of factual questions and disputes in the trial court, provides a meaningful record for review, and serves to avoid prolonged delays on appeal.’ [Citation.] In our view, making the appellate court the trier of fact is not the solution. ‘[I]t is up to the juvenile court to review the information concerning the notice given, the timing of the notice, and the response of the tribe, so that it may make a determination as to the applicability of the ICWA.’ [Citation.]” (In re Mary G. (2007) 151 Cal.App.4th 184, 212.)
On remand, the juvenile court shall consider whether ICWA notice should have been sent to the Pascua Yaqui Tribe and the Blackfeet Tribe. The court shall order the Department to furnish any notice that it determines to be necessary.
II.
The mother contends substantial evidence does not support the juvenile court’s finding that R.L. is likely to be adopted. We disagree.
To terminate parental rights, “the [juvenile] court must find by clear and convincing evidence that it is likely that the child will be adopted.” (In re Asia L. (2003) 107 Cal.App.4th 498, 509; § 366.26, subd. (c)(1).) There must be “convincing evidence of the likelihood that adoption will take place within a reasonable time. [Citation.]” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)
On appeal, we must uphold the finding of adoptability and termination of parental rights if they are supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) We “presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citations.]” (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) “In selecting a permanent plan for an adoptable child, there is a strong preference for adoption over nonpermanent forms of placement. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
The issue of adoptability “focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’ [Citations.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649, orig. italics.)
The evidence shows that R.L. has had three medical examinations and has been determined to be a well baby with no medical or health problems. She appears to be developmentally on target, has made developmental gains appropriate to her age, and does not suffer from any developmental delays.
The mother nevertheless contends the evidence of adoptability was not substantial because, according to the disposition report, “several of [R.L.’s] family members, including her mother, suffer from developmental disabilities.” We disagree.
Because the issue of adoptability focuses on the minor (In re Sarah M., supra, 22 Cal.App.4th at p. 1649), the juvenile court could find the evidence that R.L. has made appropriate developmental progress to be more compelling than the evidence that other family members have suffered disabilities. This is especially true where, as here, the particular disability at issue is not identified and the record does not address the probability of its reoccurrence in successive generations. The juvenile court was not required to conclude that adoption would be difficult due to the speculative prospect of a later-arising developmental disability.
The mother next contends the evidence of adoptability was not substantial because she, herself, “had a history of long-standing methamphetamine use.” This claim, like the last one, improperly focuses on someone other than the minor. Although the juvenile court sustained an allegation that the mother had used methamphetamine while pregnant with R.L., the evidence did not show the extent of her prenatal methamphetamine use or its probable adverse impact upon the developing fetus. The juvenile court was not required to speculate that the mother’s methamphetamine use had somehow harmed R.L., especially in light of the well baby findings. Nor was the court required to speculate that prospective adoptive parents would fear that the mother’s methamphetamine use had harmed R.L. to such an extent that she was not generally adoptable.
As noted, the DSS adoption assessment stated that R.L. “appears to have an emotional connection to her caretakers as exhibited by her wanting the caretakers to hold her, becoming upset when they do not respond to her, and seeking them out for assurance.” The mother also complains that the assessment did not consider or evaluate “the effect of moving [R.L.] from her caretakers to another home.” The point has no merit.
Although the juvenile court could properly deduce that some adverse effect would occur, it was not required to deduce that the effect would be so great as to preclude a finding of adoptability. The prospect that a child may have some continuing behavioral problems does not foreclose a finding of adoptability. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.) Nor is the finding foreclosed by the prospect that a change of caretakers may cause some new behavioral problems.
Because the finding of adoptability is supported by substantial evidence (In re Lukas B., supra, 79 Cal.App.4th at p. 1154), we need not consider the mother’s subsidiary argument that the record fails to contain sufficient evidence that, even though R.L. was not generally adoptable, “there were families interested in adopting children with . . . characteristics” similar to R.L.
DISPOSITION
The order terminating parental rights is vacated and the matter is remanded for the limited purpose of considering whether ICWA notice should have been sent to the Pascua Yaqui Tribe and the Blackfeet Tribe. If the court determines that further notice is required, it shall order that notice be provided and thereafter proceed as required by law. If the court determines that no further notice is necessary, all previous findings and orders shall be reinstated and the judgment shall stand affirmed.
We concur: RAYE, Acting P.J., MORRISON, J.