Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIJ114429, Charles J. Koosed, Judge.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant.
Pamela J. Walls, 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
HOLLENHORST, Acting P. J.
A juvenile court terminated the parental rights of S.P. (mother) as to her children, R.P., M.P., and S.P. (the children). On appeal, mother claims: 1) there was insufficient evidence to support the juvenile court’s finding that the children were adoptable; and 2) the court failed to comply with the inquiry requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.; ICWA). We agree with mother’s ICWA claim. Therefore, we will vacate the judgment and remand the matter to the juvenile court with directions to order compliance with the ICWA inquiry provisions and to provide notice if necessary. In all other respects, we affirm.
Counsel for the children filed a letter brief on April 6, 2009, joining in mother’s argument that the juvenile court failed to comply with its duty of inquiry under ICWA. Counsel states that this court should remand the matter to the juvenile court with directions to comply with the ICWA inquiry provisions. Otherwise, counsel urges this court to affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On May 10, 2007, the Riverside County Department of Public Social Services (the department) filed a petition on behalf of the children. At that time, R.P. was 20 months old, and M.P. and S.P., who are twins, were four months old. The petition alleged that the children came within Welfare and Institutions Code section 300, subdivision (b) (failure to protect). The petition included the following allegations: That mother and father (the parents) had a history of domestic violence; mother admitted to a prior arrest on domestic violence charges; the parents had failed to ensure that the children received appropriate medical care; mother had a history of substance abuse; the parents led a transient lifestyle; mother had received family maintenance services in 2001 as to another child, who was later detained; mother suffered from mental health issues and was not compliant with her medication; and the parents left the children unsupervised.
All further statutory references will be to the Welfare and Institutions Code unless otherwise noted.
Father is not a party to this appeal.
The detention hearing was held on May 11, 2007. At the hearing, the court asked mother and father if they had any American Indian ancestry, and they both said no. Thus, the court found that the parents denied Indian ancestry and that ICWA did not apply. Father filed a form JV-130 stating that he had no Indian ancestry as far as he knew. The court detained the children in foster care and ordered supervised visitation.
Jurisdiction/disposition
The social worker filed a jurisdiction/disposition report on May 31, 2007, recommending that the children be declared dependents of the court and that mother be offered reunification services. The social worker reported that on May 8, 2007, the children were placed in two different foster homes—M.P. and S.P. were placed together, and R.P. was placed on her own. All three children were developing normally and were very happy children.
In an addendum report filed on July 13, 2007, the social worker reported that mother’s mental and emotional stability, along with her cognitive deficiency, impaired her ability to properly care for the children. The social worker also stated that he received a telephone call from the maternal grandmother on June 26, 2007, requesting placement of the children. She said she would be willing to adopt them if necessary.
In another addendum report filed on September 7, 2007, the social worker reported that he had spoken with the foster parents of the children, and they stated that if the children became available for adoption, they were interested in adopting them.
A contested jurisdictional hearing was held on September 12, 2007. Mother did not attend. The court found that the children came within section 300, subdivision (b) and declared them dependents of the court. The court ordered mother to participate in reunification services.
Six-month Status Review
The social worker filed a six-month status review report on January 7, 2008, and reported that all three children were placed with the maternal grandmother, M.J. (the grandmother), on December 23, 2007. R.P. was two years old and was meeting all developmental milestones. She could climb, run, and ride a tricycle, name the parts of the body, and could speak very well. S.P. was in good health and meeting all developmental milestones. She smiled often and was very attentive. M.P. was also in good health and meeting all developmental milestones. He babbled and smiled all the time. All three children were adjusting well to the grandmother’s care and were forming bonds with her. The grandmother was committed to providing the children a permanent home if the parents did not reunify with them.
The six-month review hearing was held on January 6, 2008. The court found that mother’s progress with her case plan was unsatisfactory and terminated reunification services. The court also found that return of the children to mother’s custody would create a substantial risk of detriment to the children’s safety and well-being. The court determined that adoption was the appropriate permanent plan. The court set a section 366.26 hearing for June 9, 2008.
Section 366.26
The social worker filed a section 366.26 report on May 23, 2008, and recommended that the hearing be continued for an additional 120 days, so that the department could continue investigating the grandmother as a prospective adoptive parent. The grandmother said she wanted to adopt the children, but she appeared to be hesitant. She said that she needed more time to talk the adoption over with her son, who lived in Washington state, since she wanted him to be her “backup” in case anything happened to her. The social worker explained that the children were the perfect candidates for finding a permanent home, due to their young ages, and urged the grandmother to make a decision. The social worker reported that the children were thriving in the grandmother’s home. S.P. had not started walking yet but was regularly receiving physical therapy to help her. The grandmother was meeting the children’s medical, mental, and emotional needs. The social worker anticipated that the children would be in a prospective adoptive home, “whether it be with relatives or not,” within the next 120 days.
The social worker further reported that mother had not addressed the issues that led to the dependency. Mother had not visited the children since July 2007, so there was no bond. Moreover, she failed to maintain contact with the department. The social worker said there was little chance of returning the children to mother’s care.
On June 9, 2008, the court continued the section 366.26 hearing to October 7, 2008, at the department’s request.
The social worker filed another section 366.26 report on September 22, 2008, recommending that parental rights be terminated and that adoption remain the permanent plan. The social worker stated that R.P. was in good health and described her as a very shy child, who opened up when she was comfortable. The social worker reported there were no medical, developmental, emotional, or mental concerns with R.P.
The social worker reported that S.P. suffered a seizure on August 21, 2008. S.P. was taken to the hospital, underwent testing, and was discharged the next day. She was scheduled for another appointment for further assessment. The social worker stated that S.P. began walking in June 2008 and was a very active child. S.P. enjoyed playing with her twin brother and was a happy baby. There were no other developmental, emotional, or mental concerns about her.
As to M.P., the social worker reported that he was meeting his developmental milestones in a timely manner, although there were concerns about him walking correctly. He was going to be referred to special services at the Inland Regional Center to aid him with the walking process, and he was going to receive a prescription for specially designed shoes. The social worker described M.P. as a playful child who loved to babble. There were no other developmental, emotional or mental concerns about M.P.
In addition, the social worker stated it was very likely that the children would be adopted, since the grandmother completed the process to obtain approval to adopt them. The social worker attached the preliminary assessment of the grandmother, which stated the grandmother was “of Native American and German descent.” The report stated she was diagnosed with diabetes five years prior, and that she used a pump that distributed insulin to her system as needed. Her condition was being monitored by her physician and controlled by medication and diet. The grandmother reportedly sought out mental health services in the past, when she felt depressed after losing her mother and experiencing financial hardships. The report further stated that the grandmother was bonded with the children. The twins were described as always smiling and having “a playful, happy nature.” R.P. listened well and behaved appropriately, and showed “a positive, endearing attachment with her prospective adoptive mother.”
Furthermore, according to the adoption assessment report, the grandmother had demonstrated her ability to be resourceful and seek the necessary services for the childreN.M.P. was receiving physical therapy, and S.P. was being monitored for her seizure condition. The grandmother attended an Individualized Education Plan (IEP) meeting for R.P. and arranged for her to attend school and receive appropriate school services.
The court held a contested section 366.26 hearing on October 7, 2008. Mother objected to the adoption of the children because of her concern regarding her brother named “M.V.,” who was once accused of sexually abusing mother’s oldest daughter. Mother admitted that the allegations were unfounded and that she did not believe them. However, she wanted the social workers to be aware of the issue. (Mother’s counsel mentioned that M.V. lived in Washington state, but there was no actual indication that this person was the same son whom the maternal grandmother wanted as a “backup” for the children.) Mother’s counsel said the grandmother was aware of the allegations but did not believe the teenage daughter. The court ordered the department to investigate the matter and stated that the department could submit an ex parte request for a restraining order, if appropriate. The court stated that it read and considered the social worker’s reports and then found it was likely the children would be adopted and terminated parental rights.
ANALYSIS
I. The Court Properly Found that the Children Were Adoptable
Mother contends that the court’s finding of adoptability was not supported by substantial evidence. We disagree.
“The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.] In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family. [Citations.]” (In re Erik P. (2002) 104 Cal.App.4th 395, 400 (Erik P.).) “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650 (Sarah M.).) “It should be remembered, at this point, that adoptability under section 366.26 is relatively easy for social service agencies to establish. (The exact language from the statute is whether ‘it is likely the child will be adopted.’)... [I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. In such a case, the literal language of the statute is satisfied, because ‘it is likely’ that that particular child will be adopted.” (In re Jayson T. (2002) 97 Cal.App.4th 75, 84-85, overruled in part on other grounds, as stated in In re Zeth S. (2003) 31 Cal.4th 396, 413-414.)
“In reviewing the juvenile court’s order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. [Citations.]” (Erik P., supra, 104 Cal.App.4th at p. 400.)
Here, there was substantial evidence to support the court’s finding of adoptability. At the time of the section 366.26 hearing, the children were all young. R.P. was three years old, and the twins were one. The social worker opined that the children were perfect candidates for the department to place in adoptive homes, because of their young ages. All the children were meeting their developmental milestones. There were no emotional, or mental concerns with any of them. The twins were described as always smiling and having “a playful, happy nature.” R.P. listened well, behaved appropriately, and showed “a positive, endearing attachment with her prospective adoptive mother.” The social worker noted in the adoption assessment report that the grandmother had attended an IEP meeting for R.P., but there was no major concern, since the maternal grandmother arranged for R.P. to receive appropriate services. Similarly, M.P. had some problems walking correctly, but he was receiving physical therapy. S.P. was being monitored for her seizure condition.
Furthermore, by the time of the section 366.26 hearing, the children had lived with the grandmother for almost one year. She was fully aware of the children’s issues and had demonstrated her dedication to the developmental, physical, and emotional growth of the children. The social worker observed that the grandmother had demonstrated her ability to be resourceful and seek the services necessary for the children. As a result, the children were comfortable and secure with her. The grandmother stated that she wanted to care for them and accept full responsibility in raising them as her legal children. She is not likely to be dissuaded.
Mother claims the court was not presented with clear and convincing evidence that the children’s “disabilities” were not likely to dissuade individuals from adopting them. She further states that the social worker’s reports “did not suggest that there were other families willing to adopt children with these children’s problems.” However, as set forth above, “the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parent’s willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]” (Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.) Thus, the grandmother’s interest in adopting the children was evidence that their problems were not likely to dissuade anyone from adopting them.
Mother further claims the likelihood of adoption depended solely on the existence of a prospective adoptive parent who was willing to adopt the children, and, as such, the grandmother had to be examined for any legal impediments to adoption. Mother then argues that the legal impediments to adoption were the facts that the grandmother “was 56 years old, diabetic, and she suffered recurring bouts of depression. She had... chosen to disbelieve allegations of an uncle’s molestation of the mother’s teenage child.” Mother’s claims are meritless. The finding of adoptability was not based solely on the grandmother’s willingness to adopt the children. The children were considered generally adoptable. (See ante.) In a report dated June 9, 2008, the social worker opined that the children were “perfect candidates” for the department to find a permanent home and anticipated that the children would be in a prospective adoptive home, “whether it be with relatives or not.” “If [a] child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.]” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) Even if the finding of adoptability was based solely on the grandmother’s willingness to adopt the children, the “facts” listed by mother were not legal impediments to adoption. “[T]he suitability of the prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to the issue of whether a child is likely to be adopted. [Citations.]” (Id. at p. 1061, italics added.) Examples of legal impediments include: 1) the prospective adoptive parent is not at least 10 years older than the child (Fam. Code, § 8601); 2) the child is over 12 years old and has not consented to the adoption (Fam. Code, § 8602); and 3) the prospective adoptive parent has not obtained the consent of the spouse (Fam. Code, § 8603). (See Sarah M., supra, 22 Cal.App.4th at p. 1650.) None of these legal impediments existed here.
We conclude that there was sufficient evidence to support the court’s finding of adoptability.
II. The Court Failed to Comply with ICWA Inquiry Requirements
Mother argues that the termination order must be reversed since the court failed to comply with the inquiry requirements of ICWA. She contends that the court had reason to believe the children had Indian heritage, since the adoption assessment report stated that the grandmother was of Native American descent. However, the court erred in failing to conduct an adequate inquiry into the children’s Indian ancestry upon being presented with this information. We agree.
A. The Court Failed to Make an Adequate Inquiry as to the Children’s Indian Ancestry
Section 224.3, subdivision (a), provides that the court and the department “have an affirmative and continuing duty to inquire whether a child for whom a petition under Section 300, 601, or 602 is to be, or has been, filed is or may be an Indian child in all dependency proceedings....” (See also Cal. Rules of Court, rule 5.481(a).) Section 224.3, subdivision (c), provides that if the court or social worker “knows or has reason to know that an Indian child is involved, the social worker... is required to make further inquiry regarding the possible Indian status of the child....” (§ 224.3, subds. (a), (c); see also rule 5.481(a)(4).) The circumstances that may provide reason to know a child is an Indian child include that “a member of the child’s extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe.” (§ 224.3, subd. (b)(1).)
All further references to “rules” are to the California Rules of Court.
The record demonstrates that the court did not completely fulfill its duty of inquiry. It shows that the court inquired whether the children were of Indian descent at the detention hearing. The court asked mother and father if they had any Indian ancestry, and they both said no. Thus, the court found that the parents denied Indian ancestry and that ICWA did not apply. Father filed a form JV-130 stating that he had no Indian ancestry, as far as he knew. However, the court’s duty to inquire of Indian heritage continued throughout the proceedings. At the section 366.26 hearing, the court was presented with the preliminary assessment report of the prospective adoptive parent. The report stated that the grandmother was “of Native American and German descent.” This information triggered the duty of both the court and the social worker to further inquire about the children’s possible Indian heritage. (See In re Alice M. (2008) 161 Cal.App.4th 1189, 1200.) There was no apparent attempt to inquire further.
The department admits that it is required to inquire into Indian ancestry further when the social worker knows or has reason to know that a child may be, or is, an Indian child. (Rule 5.481(a)(4).) It further admits that a social worker “interviewed the maternal grandmother and reported her heritage disclosures.” However, the department asserts that “there [was] no indication that the maternal grandmother’s information suggested that the children were members of an Indian tribe, were eligible for membership, or that their relatives were members of [a] tribe.” We disagree. The minimal showing required to trigger further inquiry is merely information “suggesting” a child is eligible for membership in a tribe, or one of the child’s grandparents was a member of a tribe. (§ 224.3, subd. (b)(1).) Surely the maternal grandmother’s statement that she was of Native American descent was sufficient to trigger further inquiry.
The department next contends that any error in not conducting further inquiry was harmless for two reasons. First, it claims harmless error since mother has made no offer of proof that, “if asked again about possible Indian heritage, she would respond any differently than she did during the beginning stages of this proceeding.” (Italics added.) However, mother clearly had a different understanding of her heritage than did the grandmother, since mother denied any Indian heritage. The additional information from the grandmother was what triggered the further inquiry.
Second, the department argues that any error was harmless because placement of the children with the grandmother satisfies the ICWA purpose of promoting the stability of Indian families, since she is the relative claiming to have Indian ancestry. In other words, the department asserts that, even if this court remanded the matter and the remand resulted in a finding that the children were Indian children, they would be placed with their maternal grandmother anyway. Such assertion is pure speculation. Furthermore, the department completely ignores the fact that ICWA protects the interests and rights of the tribe itself. (In re Kahlen W. (1999) 233 Cal.App.3d 1414, 1425.) “[25 U.S.C. section 1912] and all cases applying [ICWA] unequivocally require actual notice to the tribe of both the proceedings and of the right to intervene. [Citations.]” (Id. at p. 1422.) “Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under the Act irrespective of the position of the parents, Indian custodian or state agencies. Specifically, the tribe has the right to obtain jurisdiction over the proceedings by transfer to the tribal court or may intervene in the state court proceedings.” (Id. at p. 1421.)
We conclude that the court and the department did not fulfill their inquiry duties. Thus, the matter must be remanded for proper ICWA compliance.
DISPOSITION
The order of the juvenile court terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to order compliance with the ICWA inquiry provisions. Specifically, the court must order the department to further inquire with the maternal grandmother regarding her Native American heritage. If necessary, the appropriate tribes must then be properly noticed of the proceedings. After proper notice, if a tribe claims the children are Indian children and seeks to intervene in the juvenile court proceedings, a further permanency hearing shall be held in accordance with ICWA. If, on the other hand, no tribe claims the children to be Indian children, or if no tribe seeks to intervene, the order terminating parental rights, which in all other respects is affirmed, shall be reinstated.
We concur: MCKINSTER, J., GAUT, J.