Opinion
C043116.
11-21-2003
In re S. B. et al., Persons Coming Under the Juvenile Court Law. TEHAMA COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ANGELA F., Defendant and Appellant. CAROLYN F. et al., Movants and Appellants.
Angela F., the mother of S. B. and L. F., and Carolyn F. and Gerald F., the maternal grandparents and de facto parents of S. B., have filed appeals from an order of the juvenile court terminating Angelas parental rights. (Welf. & Inst. Code, §§ 366.26, 395.) Appellants contend the Tehama County Department of Social Services (DSS) failed to comply with the notice requirements of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.) (the Act) regarding S. B. Appellants also claim the evidence was insufficient to support the juvenile courts finding that S. B. was adoptable, and argue substantial evidence supported application of a statutory exception to adoption based on S. B. and L. F.s relationship with each other.
A minute order dated November 13, 2000, indicates that the court granted de facto status as to S. B. only. There is nothing in the record to indicate that such status was ever granted as to L. F.
Further undesignated section references are to the Welfare and Institutions Code.
Agreeing with appellants that the juvenile court violated the Act, we reverse in part and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
On February 18, 2000, DSS filed original juvenile dependency petitions pursuant to section 300 on behalf of three-year-old S. B. and 18-month-old L. F. Those petitions alleged in part that the minors were at a substantial risk of suffering serious physical harm due to Angelas substance abuse. The identity of the father of S. B. was unknown. Thereafter, the juvenile court sustained the petitions in part and adjudged the minors dependent children.
In a May 2000 report, DSS stated that, because Michael B. was married to Angela when S. B. and L. F. were born, Michael B. was their "legal" father. Approximately one year later, the juvenile court referred to Michael B. as the "presumed" father of S. B. and L. F. and granted his request to have counsel appointed to represent him. Michael B. told DSS he had Indian heritage, which he believed was "from the Black Foot [sic] and the Cherokee tribes." Although at one point DSS concluded that the Act did or may apply, it sent no notices of the proceedings to any tribes. Thereafter, at various times, DSS concluded that the Act did not apply and might or might not apply.
In June 2000, the juvenile court ordered S. B. placed with Carolyn and Gerald F. Thereafter, the court granted a request by Carolyn and Gerald to be de facto parents of S. B. However, the court also ordered S. B. removed from the custody of Carolyn and Gerald and placed with L. F. In the meantime, the court had found that L. F.s father was not Michael B., but Shain S.
In its November 2002 report prepared for the section 366.26 hearing, DSS recommended that the minors be adopted. S. B. had several birth defects that required monitoring, and also had received counseling. According to the social worker, S. B. progressed in counseling and, despite her exposure to drugs and alcohol prior to her birth, S. B. was developmentally on target.
S. B. has been in six different foster care placements. S. B.s current foster family did not want to adopt her. However, a report from the State Department of Social Services noted S. B.s "medical condition appear[ed] to be good" and that she was demonstrating the ability to "get close emotionally" to adults. That report also claimed that, although S. B. still had emotional problems, she was continuing to improve. S. B. and L. F. were in the same foster home.
The state agency had not yet located an adoptive home for the minors. However, it had "initiated its search for a suitable adoptive family for [the minors]. The Department is confident that a suitable adoptive family can be found if additional efforts are made to locate such a family. Our efforts to find a suitable family for the minors were delayed until [S. B.s] psychological report was made available to us. The minors are to remain in their current confidential foster placement until they can be prepared for adoptive placement."
At the January 10, 2003, section 366.26 hearing, adoptions specialist Karen Baily testified that, although she had not yet selected an adoptive family for the minors, she had received home studies of some families. Baily acknowledged that, as a special needs minor, S. B. was "hard to place." But according to Baily, most recently S. B. was doing much better. Baily continued to recommend adoption as the best permanent plan for the minors, emphasizing their need for security and permanency.
Social worker Steven Dickerson also testified that adoption would best meet the needs of the minors. Moreover, both Baily and another social worker, Cynthia Jeude, acknowledged the importance of maintaining sibling contacts. Social worker Sean Dillon told the juvenile court that he believed adoption remained the recommendation of DSS.
Angela testified she was in criminal custody until April 2003. According to Angela, S. B. and L. F., along with two of their siblings, had all lived together at one time with Angela. Carolyn F. told the juvenile court that S. B. and L. F. had visited these two siblings regularly.
Counsel for Angela argued that two statutory exceptions to adoption applied, precluding adoption of the minors. As an alternative to adoption, counsel suggested a guardianship. Counsel for Carolyn and Gerald F. also urged the juvenile court to order a guardianship of the minors. According to counsel, adoption would not serve the best interests of the minors. Both counsel also suggested the minors might not be adoptable.
The juvenile court found it likely the minors would be adopted and ruled that no statutory exceptions to adoption applied in this case.
DISCUSSION
I
Noting the record contains evidence S. B. might be an Indian child, but that DSS sent no notices of the proceedings to any Indian tribes, appellants contend DSS violated the notice requirements of the Act.
In 1978, Congress passed the Act, which is designed to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children "in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs." (25 U.S.C. § 1902; Mississippi Choctaw v. Holyfield (1989) 490 U.S. 30 .)
To effectuate the purposes of the Act, "`child custody proceeding[s]" (25 U.S.C. § 1903(1)) involving, among other proceedings, the "`termination of parental rights" (25 U.S.C. § 1903(1)(ii)) to an Indian child, are subject to special federal procedures. "`[T]ermination of parental rights" means "any action resulting in the termination of the parent-child relationship." (Ibid. )
Among the procedural safeguards imposed by the Act is the provision of notice to various parties. Section 1912(a) of the Act provides as follows: "In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the [Bureau of Indian Affairs (BIA)]in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the [BIA] . . . ." (Italics added.)
The Act provides for invalidation of a termination action for violation of the notice provision in an action brought by the Indian child, parent, Indian custodian, or the Indian childs tribe. (25 U.S.C. § 1914.) The Act also contains various evidentiary and other requirements that may be different from state law and procedure. (25 U.S.C. §§ 1912(d), (f), 1915.)
A major purpose of the Act is to protect "Indian children who are members of or are eligible for membership in an Indian tribe." (25 U.S.C. § 1901(3).) For purposes of the Act, "`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[.]" (25 U.S.C. § 1903(4).)
In support of their claims, appellants cite in In re Kahlen W. (1991) 233 Cal.App.3d 1414 (Kahlen W.). In that case, the court stated: "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. Without notice, these important rights granted by the Act would become meaningless." (Id. at p. 1421.)
In Kahlen W., a social services employee spoke with three different groups of Miwok Indians, attempting to determine the minors status. In granting the writ sought by the mother of the minor, the appellate court held the Department of Social Services (Department) had failed to notify the tribe of its right to intervene in the proceedings, as required by the Act. (233 Cal.App.3d at pp. 1418, 1420, 1424, 1426.)
The court rejected the Departments contention that the record showed substantial compliance with the notice provisions of the Act. It noted that all pertinent authority plainly required "actual notice to the tribe of both the proceedings and of the right to intervene." (Kahlen W., supra, 233 Cal.App.3d at p. 1422, italics omitted.) Mere "`awareness" of the proceedings is not sufficient under the Act. (Ibid.)
Kahlen W. emphasized that notice is mandatory and that ordinarily failure in the juvenile court to secure compliance with the Acts notice provisions is prejudicial error. The only exceptions lie in situations where "the tribe has participated in the proceedings or expressly indicated [it has] no interest in the proceedings." (233 Cal.App.3d at p. 1424; but see In re Junious M. (1983) 144 Cal.App.3d 786, 794 , fn. 8.)
The Kahlen W. court rejected a suggestion by the Department that its noncompliance with the notice provisions of the Act was a result of the mothers failure to cooperate by not providing the Department with the roll number and by not timely communicating her ancestry. (233 Cal.App.3d at pp. 1424-1425.) As the court pointed out, the Act is intended to protect the interests of the tribe as well as those of the minors parents. (Id. at p. 1425.) Moreover, the minor is entitled to the protection of the Act irrespective of the actions of the parents. (Ibid.) Finally, the court rejected the claim that by her silence the mother waived her rights under the Act. (Ibid.)
California Rules of Court, rule 1439(f) [further references to rules are to the California Rules of Court], provides in part: "(3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership. [¶] (4) If the identity or location of the parent or Indian custodian or the tribe cannot be determined, notice shall be sent to the [BIA], which has 15 days to provide notice as required. [¶] (5) Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child."
Rule 1439(g)(1) provides: "Determination of tribal membership or eligibility for membership is made exclusively by the tribe. [¶] (1) A tribes determination that the child is or is not a member of or eligible for membership in the tribe is conclusive."
In this case, Michael B., the presumed father of S. B., reported to the social worker that he had Indian heritage, which he believed was Cherokee or Blackfeet. At that point, DSS was obliged to ascertain the names of all Cherokee and Blackfeet tribes and send proper notices to them. Alternatively, the juvenile court was advised to direct DSS to do so. Instead, inexplicably neither entity did anything about the matter.
We reject the argument by DSS that Michael B. is not a "parent" within the meaning of the Act. The Act defines a parent as any "biological parent . . . ." (25 U.S.C. § 1903(9).) Here, the record reflects Michael B. was married to Angela when S. B. was born; as such, he is presumed to be S. B.s father. (Fam. Code, § 7611, subd. (a).) Therefore, Michael B. is a "parent" pursuant to the Act.
The Act requires the agency to notify "the Indian childs tribe" of the proceedings if "the court knows or has reason to know that an Indian child is involved." (25 U.S.C. § 1912(a).) Here, the juvenile court had reason to know the minor was an Indian child of Cherokee or Blackfeet heritage. The Act continues: "If the identity or location of . . . the tribe cannot be determined, such notice shall be given to the [BIA] . . . ." (Ibid .)
The Federal Register lists the recognized Indian tribes. That list contains three Cherokee entities and the name of one Blackfeet tribe. (67 Fed.Reg. 46328 et seq. (July 12, 2002).) Accordingly, there was no mystery concerning the identity and location of S. B.s possible tribal affiliation. Since the identity and location of the possible Indian entities were known to DSS, there was no justification under the Act for failing to give those tribes notice of these proceedings.
The Cherokee entities are Cherokee Nation of Oklahoma (67 Fed.Reg. 46328), Eastern Band of Cherokee Indians of North Carolina (67 Fed.Reg. 46329), and United Keetoowah Band of Cherokee Indians in Oklahoma (67 Fed.Reg. 46331). The Blackfeet tribe is Blackfeet Tribe of the Blackfeet Indian Reservation of Montana. (67 Fed.Reg. 46328.)
In In re Edward H. (2002) 100 Cal.App.4th 1, 4 (Edward H. ), the father of the minor informed a social worker that he believed he belonged to the Choctaw Tribe. The agency sent notice of the dependency proceedings to the BIA and two Choctaw tribal entities; it omitted to send notice to a third Choctaw entity. The Court of Appeal held that proper notice to some but not all possible tribes does not violate the Act, as long as the agency also gives notice to the BIA. (Ibid .) In support of its decision, the court noted that the identity of the actual Choctaw Tribe was unknown to the father. (Id. at p. 5.) Distinguishing our opinion in In re Marinna J. (2001) 90 Cal.App.4th 731, the court also noted that no notice was sent to the BIA in that case. (Id. at p. 6.)
Edward H. is distinguishable on its facts. There, proper notice was given to the BIA. (Edward H., supra, 100 Cal.App.4th at p. 6.) As we have seen in this case, no notice was sent to any tribes or to BIA. In any event, to the extent Edward H., supra, is inconsistent with our opinion in In re Marinna J., supra, we follow the latter.
In In re Levi U., this court held, "Neither the Act nor the various rules, regulations, and case law interpreting it require [a child services department] or the juvenile court to cast about, attempting to learn the names of possible tribal units to which to send notices, or to make further inquiry with BIA." (In re Levi U. (2000) 78 Cal.App.4th 191, 199.) In that same case, however, we also observed that, when a party proffers the name of a tribe, there is a duty to notify that tribe. There, "the lack of any information suggesting anyone in the family had a specific tribal affiliation constituted a determination that neither appellant nor the minor was eligible to become a tribal member." (Id. at p. 198.) Here, on the other hand, such information was provided.
The record in this case reveals that no notices of the proceedings were sent to any tribe, in violation of the Acts notice requirements. Lacking proper notice, the proceedings did not produce a valid termination of parental rights. The Act clearly places the duty to notify known tribes on the party seeking to terminate parental rights. (25 U.S.C. § 1912(a).)
We note the Acts requirement that DSS provide notice to the Indian entities directly in cases in which the identity and location of the minors possible tribal entity is known, rather than relying on the BIA in those circumstances, does not place a heavy burden on DSS. Here, it was simple to determine, from the list of recognized Indian tribes, the entities to which DSS was required to give notice.
To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, DSS should follow a two-step procedure. First, it should identify and verify any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Rule 1439(f).) As part of that step, DSS should attempt to obtain all relevant data. Second, DSS should provide to the juvenile court a copy of the notice sent and the return receipt, as well as correspondence received from any Indian entity relevant to the childs status. If, for some reason, the correct identity or location of the tribe cannot be determined, then the same procedure should be used with respect to providing notice to the BIA.
Failure to provide notice was prejudicial because it is apparent none of the Indian entities noted above received notice of the proceedings in this case. "[A]ll cases applying the Act unequivocally require actual notice to the tribe . . . ." (Kahlen W., supra, 233 Cal.App.3d at p. 1422, italics omitted.) In sum, "[t]he juvenile courts failure to secure compliance with the notice provisions of the Act is prejudicial error." (Id . at p. 1424.)
Carolyn and Gerald F. argue that, as grandparents and de facto parents of the minors, they have standing to challenge termination of parental rights and raise the same claims as Angela has raised in this appeal. The record only confirms they are de facto parents of S. B. As it is undisputed that Angela has standing as the mother of the minors to challenge termination of her parental rights in her appeal, we need not address the question whether Carolyn and Gerald also have standing.
II
Appellants claim the evidence is insufficient to support the finding by the juvenile court that S. B. was adoptable. They contend the special needs of S. B. and the fact that she had been in six placements undermine the substantiality of the social workers opinion that S. B. was adoptable.
As we conclude both counsel for Angela and counsel for Carolyn and Gerald F. did challenge the adoptability finding, we need not consider their claim of ineffective assistance of trial counsel for failure to raise the claim in the juvenile court.
When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the trial court is clear and convincing evidence, we must determine if there is any substantial evidence—that is, evidence that is reasonable, credible, and of solid value—to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222 Cal.App.3d 1206, 1214.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319; In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re Steve W. (1990) 217 Cal.App.3d 10, 16.)
The goal of dependency proceedings is protection of the child. (In re Kerry O. (1989) 210 Cal.App.3d 326, 333.) An important aspect of this goal "is to provide children with stable, permanent homes." (In re Heather P. (1989) 209 Cal.App.3d 886, 890.) A preference for permanent placement, as afforded by adoption, is a vital component of the statutory scheme. (In re Brian R. (1991) 2 Cal.App.4th 904, 923-924; cf. In re Mark V. (1986) 177 Cal.App.3d 754, 760-762.)
The issue of adoptability "focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the minor already be in a potential adoptive home, or that there even be a prospective adoptive parent. (Ibid.)
The record in this case reflects S. B. generally was in good health. Moreover, in most respects she was adapting well in the care of her foster parents. Based upon this evidence, the juvenile court reasonably could find, as it did, that although the record suggests S. B. will continue to present some challenges to her caregiver, she was likely to be adopted. (Cf. In re Roderick U. (1993) 14 Cal.App.4th 1543, 1550.)
It is true that, as appellants suggest, S. B. has some special needs. But she has shown some improvement, and has developed the ability to adjust to different foster care placements. Moreover, S. B. demonstrates the capability to develop significant relationships with adult figures. These circumstances suggest the adoptability of the minor does not depend on the willingness of a particular current foster parent to adopt her.
Here, although a prospective adoptive home had not yet been located, DSS had received some home studies. In any event, the lack of an adoptive home does not preclude a finding that S. B. was likely to be adopted. (In re Sarah M., supra, 22 Cal.App.4th at p. 1649.) And the prospect that S. B. may have some continuing behavioral problems did not foreclose a finding of adoptability. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.)
In In re Tamneisha S. (1997) 58 Cal.App.4th 798, the social services agency was unable, after a 10-month search, to locate an adoptive home for the child. (Id. at pp. 802-803.) Ultimately, the juvenile court granted a guardianship after finding the agency had failed to show the minor was likely to be adopted. (Id. at p. 803.) The Court of Appeal affirmed the order of guardianship. (Id. at p. 808.)
This case is different procedurally from the circumstances found in In re Tamneisha S. Here, as we have seen, DSS had received some home studies. Moreover, the record suggests S. B. has the ability to form attachments with caregivers. Finally, the record reflects S. B. has improved and there is no evidence she will not continue to do so.
It is true that sometimes "special needs" children are more difficult to place than those without such needs. For example, in In re Michael G. (1983) 147 Cal.App.3d 56, the minor was developmentally disabled and suffered from serious emotional problems. According to the record in that case, the seven-year-old minor functioned below his age level, was not completely toilet-trained, and possessed limited language abilities. On that record, the court noted all parties had conceded adoptive placement would be difficult. (Id. at p. 58-59.)
The situation here is different. Although S. B. continued to have special needs, in its report, the State Department of Social Services noted that S. B. was improving. Moreover, as that report also observed, S. B.s medical condition was good and she was developing close attachments to new adults in her life. Finally, the State report recommended adoption. This evidence refutes the claim of appellants that the record is "devoid of information supporting [S. B.s] adoptability."
In sum, substantial evidence supports the juvenile courts determination that S. B. was likely to be adopted. (Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 843-844.)
III
Appellants claim substantial evidence supports a finding that a statutory exception to adoption based on sibling relationships applies in this case, requiring reversal of the order terminating parental rights as to L. F. Noting S. B. and L. F. had been together for most of their lives, appellants argue that if S. B. and L. F. become separated, the results of that separation will be emotionally detrimental to both of them.
One circumstance under which termination of parental rights would be detrimental is when "[t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(E).)
The court must consider the interests of the adoptive child, not the siblings, in determining whether termination of parental rights would be detrimental to the adoptive child. (In re Celine R. (2003) 31 Cal.4th 45, 49-50; In re Daniel H. (2002) 99 Cal.App.4th 804, 813.)
Appellants assert that "[d]oubtless, severance of [their] relationship would be detrimental to [S. B. and L. F.]." The difficulty with that claim is the failure of appellants to tender any evidence supporting it.
Angela has standing to assert the sibling relationship exception to adoptability. (In re L. Y. L. (2002) 101 Cal.App.4th 942, 948-951.)
Pursuant to section 366.26, subdivision (c)(1)(E), the juvenile court is given the discretion to determine that termination of parental rights would be detrimental under certain circumstances. To make such a determination, the court must find a "compelling reason." (§ 366.26, subd. (c)(1).) Moreover, the statute contains a number of criteria that the court may consider. Here, it did so, concluding the evidence adduced did not support a showing of a substantial interference with sibling relationships or that ongoing contact among all four siblings was in the best interests of the minors.
Substantial evidence supports the finding by the juvenile court that the section 366.26, subdivision (c)(1)(E) exception to adoptability was not applicable in this case. Here, S. B. and L. F. were living together. There is no evidence adoption would interfere with that relationship. Even a guardianship or long-term foster care would not guarantee they would remain together.
It is speculative to suggest, as do appellants, that S. B. will become separated from L. F. if L. F. is adopted and S. B. is not. We express no view on the possible outcome of the remand which we are ordering in this appeal to address the issue whether the Act applies to the proceedings. For this reason, we reject the claim of appellants that, in order to preserve the relationship between L. F. and S. B., we must reverse the order terminating parental rights as to L. F. as well as to S. B.
We conclude the juvenile court did not err in failing to find an exception to adoption based on maintenance of sibling relationships.
DISPOSITION
The order of the juvenile court terminating the parental rights of Angela as to S. B. is reversed, and the matter is remanded to the juvenile court with directions to order DSS to provide each of the three Cherokee tribes and the Blackfeet Tribe of the Blackfeet Indian Reservation of Montana with proper notice of the proceedings under the Act. If, after receiving notice under the Act, no tribe indicates S. B. is an Indian child within the meaning of the Act, then the juvenile court shall reinstate the order terminating Angelas parental rights as to S. B. without conducting a new evidentiary hearing pursuant to section 366.26. If, on the other hand, a tribe responds affirmatively, then the court must consider the issue at a new section 366.26 hearing and conduct the hearing pursuant to the procedural and evidentiary requirements of the Act. In all other respects the order as to these minors is affirmed.
We concur: SIMS, Acting P.J., HULL, J.