Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of the County No. CK53288 of Los Angeles, Stephan Marpet, Commissioner.
Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.
Office of the County Counsel, James M. Owens, Assistant County Counsel, Tracey Dodds, Principal Deputy County Counsel, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
E. H. (father), parent of S. H. (minor), appeals from the juvenile court’s order terminating his parental rights under Welfare and Institutions Code section 366.26. Father contends that the juvenile court and the Department of Children and Family Services (Department) failed to comply with the inquiry requirements of the Indian Child Welfare Act (ICWA or Act) (25 U.S.C. § 1901, et seq.) 2 as to father, and failed to comply with ICWA’s notice requirements as to mother. Father also contends that there was insufficient evidence to support the juvenile court’s finding that minor was adoptable.
All statutory citations are to the Welfare and Institutions Code unless otherwise indicated.
The Department contends that it complied with ICWA’s inquiry requirements as to mother and that no notice was required, but concedes that, as to father, the inquiry requirements of the ICWA were not met. Nevertheless, the Department argues that father was not prejudiced by the failure to inquire because father did not claim Indian heritage in the juvenile court and does not claim such heritage on appeal. The Department also contends that there was substantial evidence to support the juvenile court’s adoptability finding.
We hold that there was substantial evidence of adoptability and that the Department and the juvenile court complied with the ICWA’s inquiry requirements as to mother, such that no notice to the Bureau of Indian Affairs (BIA) or the tribes was required. We also hold that to the extent the juvenile court did not comply with the inquiry requirements as to father, any such error was harmless.
FACTUAL AND PROCEDURAL BACKGROUND
A. ICWA Inquiry
S.H. (mother) and father are the parents of minor. On May 1, 2008, the Department received a telephone call during which the caller reported that mother was bipolar and had “active drug issues.” Also mother had been supervised by Texas Protective Services and was known by the Department because of treatment of another child. The Department filed a petition pursuant to section 300, issued a protective custody warrant for minor, and issued a warrant for mother.
On May 29, 2008, the juvenile court held a hearing on a warrant recall that mother attended represented by counsel. During the hearing, mother informed the juvenile court that she had Indian heritage through her grandmother, who was deceased, but mother did not know the name of the tribe. In response to the juvenile court’s inquiry, mother also informed the court that she did not know whether father had any Indian heritage. The juvenile court ordered the Department to inquire as to mother’s Indian heritage and to attempt to locate father.
On July 2, 2008, the Department reported that a childrens social worker (CSW) had interviewed minor’s great aunt about mother’s alleged Indian heritage. The great aunt informed the CSW that there was no Indian heritage in mother’s family. The Department further reported that mother informed the CSW that mother had Blackfeet heritage on the maternal side of her family, but did not provide sufficient information to allow the BIA or the Blackfeet tribes to determine if mother had Indian heritage. During an August 14, 2008, hearing, the juvenile court appointed counsel to represent father. The juvenile court also advised the Department that the “[ICWA] notice [had] to be completed.”
In a report filed on September 23, 2008, the Department informed the juvenile court that a CSW had interviewed mother the day before concerning mother’s American Indian heritage. According to the CSW, mother denied informing the juvenile court that she had Indian heritage and unequivocally stated, “No, I am not an Indian.” The CSW also informed the juvenile court that father had another open dependency case involving his two other children, and submitted a minute order from that case indicating that the ICWA did not apply to father. And, the CSW interviewed minor’s maternal aunt and uncle, both of whom confirmed that their family did not have any Indian heritage. The uncle also informed the CSW that mother had “mental problems.”
At the November 4, 2008, adjudication hearing, the juvenile court, inter alia, found that ICWA did not apply.
B. Adoptability
In a report filed March 3, 2009, the Department informed the juvenile court that minor had been removed from his “first [foster] home due to inappropriate care.” The Department further reported the minor was placed in a new home on October 9, 2008, and had “bloomed since coming to this new foster home.” The Department also noted that minor presented with speech delays and that the new foster mother “continued to have concerns with [minor] and his development.” On December 3, 2008, the Department filed a request for a continuance because, inter alia, minor’s “current adoptive placement home study had not been completed.” According to the Department’s motion, the “foster mother [was] having second thoughts about adopting [minor] due to the fact that he is not eligible for Regional Center services.” The Department advised that, if the issue could not be resolved, a new placement would be recommended.
On June 30, 2009, the Department reported that minor “was recently moved from [his foster] home because the family moved into a home that could not [accommodate] another child. In addition, [the foster mother] had been undecided about adopting [minor] due to ‘his problems’ and made the decision to move on without [minor].” According to the Department, minor was placed in a new home, had been there approximately three months, and it was likely that the new family would adopt him. Although the most recent foster mother wanted more time before committing to adoption, she had begun the adoption process and was completing a home study. The Department concluded that the most recent foster parents were “excellent” with minor and that it did not appear that there was any reason that “would impede... their ability to parent minor and provide him with a loving stable home.” The Department also reported that, “since moving to this new home, minor [had] really opened up and began to thrive. All the previous reported problems such as the lack of potty training and not talking [were] slowly being resolved.... In addition, his speech and social interaction [had] greatly improved.” And, according to the adoption assessment, minor was likely to be adopted.
On September 30, 2009, the Department reported that the “prospective adoptive parents... [were] committed to adopting [minor] but they would like... [the CSW] to fully disclose [minor’s] family mental health issues so that they would be able to obtain any mental health services that he may need in the future.” Accordingly, the Department requested that the juvenile court find that minor was likely to be adopted.
At the September 30, 2009, section 366.26 selection and implementation hearing, father’s counsel stated that father was “not in a position to raise any exception [to adoption] today... “[and father was] not in a position to take [minor] into his home.” Counsel for the Department then requested a continuance of the hearing so that the home study could be completed and approved. In response, the juvenile court stated, “[T]hat is not grounds to continue the matter over, and, accordingly, I’m finding, by clear and convincing evidence, [that] it is likely this child is going to be adopted, and I’m hereby terminating the parental rights [of mother and father]....”
DISCUSSION
A. Compliance with ICWA
“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.’” (In reMarinna J. (2001) 90 Cal.App.4th 731, 734, quoting 25 U.S.C. § 1902.) The Act “sets forth the manner in which a tribe may obtain jurisdiction over proceedings involving the custody of an Indian child, and the manner in which a tribe may intervene in state court proceedings involving child custody. When the dependency court has reason to believe a child is an Indian child within the meaning of the Act, notice on a prescribed form must be given to the proper tribe or to the Bureau of Indian Affairs, and the notice must be sent by registered mail, return receipt requested.” (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 906, citing In re C.D. (2003) 110 Cal.App.4th 214, 222; In re Asia L. (2003) 107 Cal.App.4th 498, 506; 25 U.S.C. § 1912(a).)
“To satisfy the notice provisions of the Act and to provide a proper record for the juvenile court and appellate courts, DSS [the social services agency] should follow a two-step procedure. First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. ([California Rules of Court,] [r]ule 1439(f).) Second, [the agency] should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor’s status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to BIA.” (In reMarinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.) “The burden is on the Agency to obtain all possible information about the minor’s potential Indian background and provide that information to the relevant tribe or, if the tribe is unknown, to the BIA.” (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) If proper notice under the Act is not given, the Indian child, the child’s parent or Indian custodian, or the child’s tribe may petition the court to invalidate the proceeding. (25 U.S.C. § 1914.)
Section 224.3 and California Rules of Court, rule 5.481 impose upon the juvenile court and the Department a continuing duty to inquire whether a child in dependency proceedings may be an Indian child under the ICWA. (See In re J.N. (2006) 138 Cal.App.4th 450, 461.) Section 224.3, subdivision (a) provides, “The court, county welfare department, and the probation 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 and in any juvenile wardship proceedings if the child is at risk of entering foster care or is in foster care.”
California Rules of Court, rule 5.481(a) provides, in pertinent part:
“The court, court-connected investigator, and party seeking a foster-care placement, guardianship, conservatorship, custody placement under Family Code section 3041, declaration freeing a child from the custody or control of one or both parents, termination of parental rights, or adoption have an affirmative and continuing duty to inquire whether a child is or may be an Indian child in all proceedings identified in rule 5.480. The court, court-connected investigator, and party include the county welfare department, probation department, licensed adoption agency, adoption service provider, investigator, petitioner, appointed guardian or conservator of the person, and appointed fiduciary.
“(1) The party seeking a foster-care placement, guardianship, conservatorship, custody placement under Family Code section 3041, declaration freeing a child from the custody or control of one or both parents, termination of parental rights, or adoption must ask the child, if the child is old enough, and the parents, Indian custodian, or legal guardians whether the child is or may be an Indian child and must complete the Indian Child Inquiry Attachment (form ICWA-010(A)) and attach it to the petition unless the party is filing a subsequent petition, and there is no new information.
“(2) At the first appearance by a parent, Indian custodian, or guardian in any dependency case; or in juvenile wardship proceedings in which the child is at risk of entering foster care or is in foster care; or at the initiation of any guardianship, conservatorship, proceeding for custody under Family Code section 3041, proceeding to terminate parental rights proceeding to declare a child free of the custody and control of one or both parents, or adoption proceeding; the court must order the parent, Indian custodian, or guardian if available, to complete Parental Notification of Indian Status (form ICWA-020).
“(3) If the parent, Indian custodian, or guardian does not appear at the first hearing, or is unavailable at the initiation of a proceeding, the court must order the person or entity that has the inquiry duty under this rule to use reasonable diligence to find and inform the parent, Indian custodian, or guardian that the court has ordered the parent, Indian custodian, or guardian to complete Parental Notification of Indian Status (form ICWA-020).”
“[The Indian Child Welfare Act (ICWA)] itself does not expressly impose any duty to inquire as to American Indian ancestry; nor do the controlling federal regulations. [Citation.] But [the] ICWA provides that states may provide ‘a higher standard of protection to the rights of the parent... of an Indian child than the rights provided under [ICWA]’ (25 U.S.C. § 1921), and long-standing federal guidelines provide ‘the state court shall make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe.’ [Citations.]” (In re H.B. (2008) 161 Cal.App.4th 115, 120-121, fns. omitted; accord, In re S.B. (2005) 130 Cal.App.4th 1148, 1158.)
Section 224.3, subdivision (a), and rule 5.481(a) require the dependency court and the Department of Children and Family Services (the Department) to inquire whether the child “is or may be an Indian child.” In addition, rules 5.481(a)(1) (a)(2) provides that the Department must ask the parents whether the child is or may be an Indian child and the parents must be ordered to complete a form notification of Indian status.
“[A]ny failure to comply with a higher state standard, above and beyond what the ICWA itself requires, must be held harmless unless the appellant can show a reasonable probability that he or she would have enjoyed a more favorable result in the absence of the error. (Cal. Const., art. VI, § 13; People v. Watson (1956) 46 Cal.2d 818, 836 [299 P.2d 243].)” (In re S.B., supra, 130 Cal.App.4th at p. 1162; accord, e.g., In re I.W. (2009) 180 Cal.App.4th 1517, 1530; In re H.B.. supra, 161 Cal.App.4th at pp. 121-122.)
While there is no evidence in the record that father was asked whether he had Indian heritage or filled out the form notification of Indian status (rules 5.481(a)(1) (a)(2)), there is evidence that the dependency court and the Department made inquiry about whether Sean is or might be an Indian child (§ 224.3, subd. (a)). The dependency court inquired at the hearing on May 29, 2008, at a time prior to father’s first appearance in the proceeding. The Department inquired by obtaining information about the ICWA issue from father’s other open dependency case. In that other case, the dependency court ordered the Department to ask the paternal grandmother about ICWA issues and subsequently made a finding the ICWA did not apply. This information was admitted into evidence in the proceedings below. It is reasonable to infer from this evidence that an ICWA inquiry was made of paternal grandmother which revealed father had no Indian heritage.
To the extent, if any, the inquiries that were made did not satisfy section 224.3, subdivision (a), and did not comport with rules 5.481(a)(1) (a)(2), we conclude the error was harmless. Father makes no attempt to show Sean would have been found to be an Indian child if father had been asked. There was evidence father lacked Indian ancestry and of the finding in father’s other case that the ICWA did not apply. Father was present when this information was admitted, and the dependency court found the ICWA did not apply. He did not indicate this conclusion was incorrect. Nor does he indicate incorrectness now. He does not offer to us that he has some Indian connection. Thus, the record contains substantial evidence Sean is not an Indian child, and father gives us no basis for concluding that, if the matter were remanded to the dependency court, father would aver he has Indian heritage. These facts and circumstances establish that any error was harmless. (See In re H.B., supra, 161 Cal.App.4th at p. 122; In re Rebecca R. (2006) 143 Cal.App.4th 1426, 1431.)
In re J.N. (2006) 138 Cal.App.4th 450, 461 is inapposite. In re J.N. involved a complete failure to investigate the parent’s ancestry, and the record contained no information whether the parent had Indian heritage. (In re J. N., supra, at p. 461 & fn. 6.) In those circumstances, the Court of Appeal rejected harmless error analysis, “refus[ing] to speculate” about what the parent’s response to an inquiry might be. (Id. at p. 461.) Here, in contrast, as father’s ancestry was investigated and the record indicates he has no Indian heritage, there is a non-speculative basis for engaging in harmless error analysis. A conditional reversal would be an empty formality, a waste of judicial resources, and detrimental to Sean’s interest in stability and permanency.
As to mother, the record supports the juvenile court’s decision not to order the Department to give ICWA notice to the BIA or the tribes. Although mother initially informed the juvenile court that she had Indian heritage and subsequently informed a CSW that she thought her heritage was through the Blackfeet tribe, mother thereafter recanted that information and denied any Indian heritage. In addition, the Department’s inquiries of mother’s maternal great aunt and mother’s siblings confirmed that mother’s family did not have Indian heritage. Thus, after diligent inquiry by the Department as to mother’s Indian heritage, there was no factual basis upon which the juvenile court could have ordered the Department to give notice. The juvenile court’s failure to make such an order therefore did not violate the notice requirements of the ICWA.
B. Substantial Evidence of Adoptability
Father’s other contention on appeal is that the juvenile court’s finding that minor was likely to be adopted was not supported by sufficient evidence. “On appeal, we view the evidence in the light most favorable to the trial court’s order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence. [Citation.] Rather, we must determine whether there is substantial evidence from which a reasonable trier of fact could by clear and convincing evidence find a factual basis for the finding as to the child’s adoptability. [Citation.]” (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)
At a section 366.26 hearing, the juvenile court’s task is to select and implement a permanent plan for the dependent child. When there is no probability of reunification with a parent, adoption is the preferred permanent plan. (In re Marina S., supra, 132 Cal.App.4th at p. 164.) If the juvenile court finds by clear and convincing evidence that a child is likely to be adopted, the juvenile court must terminate parental rights, unless one of several enumerated exceptions applies. (Ibid.; see also § 366.26, subd. (c)(1).) Father does not contend that any statutory exception applies in this case.
Section 366.26, subdivision (c)(1) provides in relevant part, “If the court determines, based on the assessment provided as ordered under subdivision (i) of Section 366.21, subdivision (b) of Section 366.22, or subdivision (b) of Section 366.25, and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. The fact that the child is not yet placed in a preadoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute a basis for the court to conclude that it is not likely the child will be adopted. A finding... that reunification services shall not be offered... or... that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights. Under these circumstances, the court shall terminate parental rights unless either of the following applies: [¶]... [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to one or more [specified] circumstances....” Section 366.26 has been amended twice since the section 366.26 hearing, but not in any respect material to this case. (S.B. 565 [Oct. 12, 2007]); S.B. 583 [Oct. 13, 2007].)
“‘The issue of adoptability posed in a section 366.26 hearing 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.]’ [Citation.] ‘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.’ [Citation.]” (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) Furthermore, “there is no requirement that an adoptive home study be completed before a court can terminate parental rights. The question before the juvenile court was whether the child was likely to be adopted within a reasonable time, not whether any particular adoptive parents were suitable.” (In re Marina S., supra, 132 Cal.App.4th at p. 166.)
Here, after minor had lived with them for approximately six months, the prospective adoptive parents committed to adopting minor, a fact from which the juvenile court could have reasonably inferred that minor was adoptable. That inference was corroborated by the adoption assessment which indicated that minor was likely to be adopted. Moreover, a CSW reported that minor’s developmental problems were resolving in the prospective adoptive parents’ home, a fact from which the juvenile court could have reasonably inferred that those problems were no longer serious enough to prevent or deter adoption. And, as the juvenile court noted, that the adoptive home study had not been completed was not a basis upon which to conclude that minor was not yet adoptable. Because the minor had lived with the prospective adoptive parents for six months, had thrived during that time, and had the commitment from those prospective parents to adopt him, there was substantial evidence that minor was likely to be adopted by those prospective parents or some other family. Based on the record before the juvenile court, there was substantial evidence supporting the finding of adoptability.
DISPOSITION
The order is affirmed.
We concur: ARMSTRONG, J., Acting P. J.KRIEGLER, J.