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In re Stacey G.

California Court of Appeals, Second District, First Division
Sep 9, 2008
No. B205214 (Cal. Ct. App. Sep. 9, 2008)

Opinion

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Los Angeles County. No. CK60136 D. Zeke Zeidler, Judge.

Linda Rehm, under appointment by the Court of Appeal, for Appellant Beatriz Z.

Marissa Coffey, under appointment by the Court of Appeal, for Appellant Guillermo G.

Raymond G. Fortner, Jr., County Counsel, James M. Owens, Assistant County Counsel, and Kirstin J. Andreasen, Senior Associate County Counsel, for Respondent.


NEIDORF, J.

Retired Judge of the Los Angeles Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

Parents appeal from a juvenile court’s order terminating their parental rights to their daughter and freeing her for adoption. They contend insufficient evidence supports the court’s finding their special needs nine-year-old daughter was adoptable. They also contend the juvenile court erred in finding the Indian Child Welfare Act (25 U.S.C., § 1901 et seq. (ICWA)) did not apply because the Department of Children and Family Services (DCFS) failed to provide the Indian tribes the requisite notice under the Act. We affirm the court’s finding of adoptability, but we reverse the order terminating parental rights and remand with directions.

BACKGROUND

Father, Guillermo G., had been a professional boxer. In the mid-1970s he purchased an apartment building on Ocean Park Boulevard in Santa Monica. The building deteriorated and the City of Santa Monica issued citations for health and safety code violations involving deficient plumbing, electrical problems, and faulty gas connections. The city also considered the building a public nuisance, because of the old cars, equipment, and general debris cluttering the apartment building inside and out, and because of chronic criminal activity requiring numerous police responses to the building. Father failed to make the required corrections and in 1997 the City of Santa Monica filed the first of two criminal complaints against father alleging violations of the building, housing, plumbing and electrical codes. Father pleaded guilty and the court granted probation on condition father correct the violations. In 1998 father spent 280 days in jail for violating the terms of his probation by failing to correct the code violations. The City of Santa Monica filed a second criminal complaint alleging the same code violations in 2001 with the same result. In 2005 the court appointed a receiver to determine whether the apartment building should be condemned. Father hired counsel to appeal the court’s decision appointing a receiver. While the matter remained unresolved, father, mother Beatriz Z., and their daughter, then five-year-old Stacey G., lived in one part of the building and tenants rented out the remainder of the building on a daily or weekly basis.

On July 25, 2005 mother called police to report a tenant attacked her with a broomstick and a glass blender when he saw mother throwing his belongings into the trash. The officers noticed bruises on mother’s arms consistent with blows with a stick. The officers also noticed “a strong odor of an alcoholic beverage emanating from her breath and body.”

After this altercation, someone called the child protection hotline to report Stacey lived with her parents in a condemned building filled with trash and occupied by transients. A social worker visited the building and spoke with father who confirmed he rented a portion of the building to various tenants. He, mother, and Stacey slept in the same room, with mother and father occupying the bottom of a bunk bed, and Stacey sleeping on a foldout couch bed because clutter occupied the top bunk bed. During the social worker’s visit, Stacey was with mother in an alley with several transients and mother was drinking alcohol out of a paper bag.

The DCFS took Stacey into protective custody on July 29, 2005 and on August 3, 2005 filed a Welfare and Institutions Code section 300 petition alleging, among other things, parental neglect and a failure to protect Stacey. (Welf. & Inst. Code, § 300, subd. (b); further unmarked statutory references are to the Welfare and Institutions Code.)

When interviewed, Mother denied she had a drinking problem and denied knowing the city had condemned the apartment building.

The social worker interviewed Stacey’s doctor who stated Stacey’s overall health was good. The doctor said mother was devoted and caring to Stacey, but gave the impression of being a homeless person with alcohol problems.

Stacey attended special education classes because she had problems with delayed speech, language, social, academic, and other skills. Stacey also participated in after-school art instruction. Her art instructor said Stacey appeared bonded to her mother but acted fearful of father and refused to look at her father. The teacher reported mother was under the influence of alcohol every time she came to pick up Stacey after class.

Detention Hearing

The court found father was Stacey’s presumed father. Mother informed the court Stacey’s birth date was January 20, and not February 13, as listed on the reports. The court inquired whether either parent had Indian heritage. Mother stated she did not have any American Indian heritage but father said he possibly had Navajo Indian heritage from his paternal grandmother. The court directed the DCFS to send ICWA notices to the Navajo tribes and to the Bureau of Indian Affairs.

The court granted the parents monitored visits and reunification services, including parenting classes, alcohol rehabilitation with counseling and random testing.

Jurisdiction/Disposition

Father confirmed he had Navajo American Indian heritage. However, this time father stated his maternal grandmother, Natividad G., was American Indian. Father also reported that one of his ancestors had lived on an Indian reservation in Arizona, but did not know whether any ancestor attended an American Indian school. The DCFS sent ICWA notices to the relevant Indian bureaus and tribes on August 10, 2005. On August 31, 2005 the court found notice proper, the tribe had had almost ten days to respond, and that the court had no reason to believe ICWA applied. The court stated it would revisit the ICWA finding, if necessary, when it reviewed the Navajo tribe’s response at the next court date.

Father reported the contractor he hired to correct the code violations had failed to complete the job and father was finishing the repairs himself. Father hired a real estate attorney to represent him before the city and in his dealings with the court-appointed receiver.

Mother thought their living quarters were suitable and were not dangerous. On the other hand, mother agreed their residence could be cleaner and acknowledged Stacey needed a bigger room. Mother denied drinking to excess, but admitted sometimes blacking out, having no memory of events, and seeing spots when drinking. She explained she drank in “moderation,” namely, everyday when Stacey was at school and with meals.

Stacey was very happy living with her foster mother and told the social worker she did not want to go home.

The social worker reported both parents were “odiferous,” “unclean,” and “possibly under the influence” when interviewed. In the worker’s opinion mother and father needed help learning how to maintain their home as well as help to learn general living skills. The worker stated father did not recall the interview the week before with the worker regarding the petition’s allegations and thought father might have a mental illness. The worker recommended both a physical and psychiatric examination for father.

The DCFS filed an updated report before the hearing. During a supervised visit father kept taking pictures of Stacey which upset her and made her cry. Stacey said she wanted the visit to end and the foster mother told father to stop upsetting Stacey by taking her picture.

The foster family agency told the DCFS its personnel would no longer act as monitors unless father bathed before visits. A worker complained father’s body odor was so overwhelming it made monitoring visits difficult. The worker noticed Stacey did not want to be near father and believed it was possibly due to his poor hygiene. The next week father again arrived for a visit appearing disheveled, unshaven, with food on his unbuttoned shirt exposing his protruding abdomen, and wearing a hard hat. The worker explained to father it was disrespectful to Stacey and others to attend visits unbathed and wearing dirty clothes.

On September 28, 2005 the parties reached agreements regarding juvenile court jurisdiction and the proper disposition of the case. The court sustained the allegations of the petition alleging the parents had failed to protect Stacey by living in an unsafe and cluttered home, by engaging in altercations with transient tenants in Stacey’s presence, by mother’s alcohol abuse, and by father’s inaction despite mother’s alcohol abuse. (§ 300, subd. (b).) The court declared Stacey a dependent of the juvenile court and ordered her suitably placed in foster care. The court directed the DCFS to arrange a speech evaluation and individual therapy for Stacey. The court continued to offer the parents reunification services, including parenting classes, alcohol abuse rehabilitation for mother, Alanon sessions for father, individual counseling, and random testing. The court authorized monitored visits with Stacey and granted the DCFS discretion to liberalize visits with her parents. The court also ordered psychiatric evaluations of both parents.

October 2005 Psychiatric Evaluation

Dr. Suzie Dupee conducted psychiatric evaluations of both parents individually, observed one of their visits with Stacey, and filed her report in November 2005. Dr. Dupee reported mother had a long history of alcoholism, was currently adhering to an alcohol abuse treatment plan, but lacked insight into her alcohol dependence. The doctor opined it was unlikely mother would remain sober without continual observation and mandated testing “for the very long term.” Dr. Dupee concluded mother had significant dependency personality traits that interfered with her judgment. All her life mother had relied on men to care for her. Mother lived with father, despite his significant mental impairments and declining physical health, because he provided the necessities of life. Having someone provide for her was, in the doctor’s opinion, more important to mother than providing a safe environment in which to raise Stacey.

Father had been a professional boxer in the 1970s and 1980s. He stopped boxing fearing serious injury and turned to construction work. The doctor described father as an unshaven, largely toothless, “tall, obese, extraordinarily malodorous, disheveled, and unkempt male.” Dr. Dupee stated conducting the interview was difficult “due to Father’s severe stench.” Father had slurred speech and his cognition, insight, and judgment “were severely impaired.” Dr. Dupee opined that because father had been a boxer he might be suffering from dementia pugilistica and recommended father be evaluated by a neurologist.

During the observed visit, Stacey completely ignored father and did not want to see mother. Stacey was sullen but her mood visibly improved when her parents left the room. Stacey did not interact with her parents in the waiting room nor reciprocate mother’s hug.

Stacey suffered from delayed speech development, had limited vocabulary, and did not speak in complete sentences. The foster mother told the doctor that when Stacey first came to live with her Stacey did not know how to tie her shoes, did not know how to feed herself, and was unfamiliar with the concept of Christmas. The foster mother also reported Stacey was exceptionally diligent about her personal hygiene and took two showers a day. The foster mother reported Stacey had no current behavioral problems and had already made several friends at school. Stacey was currently attending special education classes and had started intensive speech therapy.

Dr. Dupee diagnosed Stacey as suffering from reactive attachment disorder which includes a “persistent failure to initiate or respond in a developmentally appropriate fashion to most social interactions as manifested by excessive inhibition, hypervigilance, or highly ambivalent and contradictory responses, e.g., she responded to caregivers with a mixture of approach avoidance, but responded to complete strangers with more affect.” Dr. Dupee stated the cause of Stacey’s disorder was “primarily the pathogenic care by her family,” and recommended “removal of the child from the pathogenic or deficient care and placement in a more appropriate environment.”

Six-Month Review Hearing

The worker reported that by March 30, 2006 Stacey was attending individual speech classes three times a week and that her speech had vastly improved. The foster mother assisted Stacey with reading, learning how to spell, and to tell time. Stacey enjoyed excellent health, loved school, and got along well with her older foster sister.

The DCFS had referred father to a neurologist for an examination but father did not follow through. He still wore filthy clothes and was still very malodorous although he was now taking showers twice a month. The worker reported clutter still filled the parents’ house. Monitors reported father often sat in a chair and slept during visits with Stacey, who still refused to make eye contact with father.

Mother’s grooming and hygiene improved considerably. Mother said she never sought help with Stacey’s speech problems because she thought it was the school’s job to teach Stacey to speak.

Stacey told the social worker she wanted to live with her foster mother and did not want to go home.

The parents made every effort to comply with the case plan. Mother completed a six-week parenting education course, a six-month intensive outpatient alcohol abuse treatment program, participated in 16 individual counseling sessions, attended weekly AA meetings, and had consistently tested negative for alcohol or drugs. Father attended parenting classes, Alanon meetings, and also submitted negative tests for alcohol.

At the hearing on May 8, 2006 the court found both parents had complied with the case plan but denied their request to return Stacey to their care. The court advised mother to resume testing for alcohol and, provided she continued to test clean, offered unmonitored day visits in a public setting for up to four hours, with her acting as a monitor for father’s visits. The court continued reunification services, including individual counseling for Stacey, conjoint counseling with the parents, job rehabilitation for father, and directed the DCFS to help father arrange another neurological evaluation.

Progress Report for July 2006

Stacey was thriving in the foster mother’s care. She had completed the first grade, received A’s in all her classes, and had made the honor roll.

Stacey was attending weekly individual therapy sessions and her therapist had observed a monitored visit between Stacey and her parents. Both parents emitted the strong odor of alcohol and the social worker requested an immediate alcohol test. The parents refused and the worker terminated the visit. A month later Stacey’s therapist visited the parents at their home. Father was so malodorous the therapist reported she could not breathe, and stated she could not conduct therapy sessions under those conditions.

Father declined the offer of assistance with job training and mother failed to show up for random alcohol tests.

Progress Report September 2006

Mother and father resumed their alcohol related programs and testing and the DCFS arranged for them to receive family preservation services. A caseworker visited the home weekly to help mother with her sobriety problems and to help father with his hygiene problems. A “teacher and demonstrator” worker also came weekly to the parents’ home to teach them skills regarding home management and cleanliness. The parents worked on the house, corrected the code violations, and cleaned up the clutter and debris in and around the house. The DCFS agreed to purchase various things for the house, including a bed and dresser for Stacey.

Because of father’s cognitive and physical disabilities mother acted as his primary caregiver. The doctor who conducted the neurological exam opined father had borderline to low cognitive skills.

Mother and father visited Stacey regularly, although father usually stayed outside during the visits.

Stacey was healthy and developing normally and had made great progress academically. She was still receiving remedial instruction and speech therapy at school and the foster mother worked with Stacey every day to practice the skills she learned at school. Stacey had a healthy and bonded relationship with her foster mother and asked the worker not to remove her from the foster mother’s care. The foster mother stated she would be willing to adopt if the parents failed to reunify with Stacey.

At the hearing, the court found the parents in compliance with the case plan and continued reunification services to the 18-month review hearing.

Eighteen-Month Judicial Review

The condition of the parents’ home had improved, the parents were cooperative, had complied with the case plan, and visited Stacey regularly. Unmonitored visits with Stacey had gone well, and with the help of therapy, Stacey was no longer so fearful of her parents.

The DCFS assigned a nurse to analyze father’s medical needs as part of the family preservation services provided. He complained that chronic pain made it difficult for him to shower more often or to go to the bathroom unassisted. The nurse arranged medical appointments for father at a low-fee clinic and father received prescription antibiotics and pain medication to address his pain. Father’s condition improved considerably and he regained sufficient mobility he no longer used a cane to walk.

The DCFS recommended Stacey be allowed to return home to her parents under juvenile court jurisdiction and supervision. Stacey’s counsel did not agree with the DCFS’s recommendation and the court set the matter for a contested hearing. The court asked the DCFS to facilitate overnight visits for mother and father with Stacey before the next court hearing scheduled for February 2007.

The parents’ first overnight visit in November 2006 with Stacey went well except the parents ignored the social worker’s advice to install a missing seat belt in their van for Stacey’s use. Stacey refused to attend a second planned overnight visit during the Christmas holiday. During a regular visit mother either took off Stacey’s shirt, or rolled up the sleeves of Stacey’s shirt, to look for bruises. Mother suspected Stacey’s foster mother of mistreating Stacey. Mother’s act offended Stacey because she did not want mother taking off her clothes, and because Stacey was very protective of the foster mother.

A third overnight visit occurred on February 3, 2007. Stacey had been emulating her older foster sister’s hairstyle by keeping her own shoulder-length hair braided. Mother thought braids in an African-American style inappropriate and sometimes undid Stacey’s braids during visits. When this would occur, Stacey had her foster mother redo her hair in braids despite mother’s objections. During the overnight visit of February 3, 2007 mother cut off Stacey’s braids while Stacey was sleeping. Stacey awoke to find her braids gone and her hair choppy and short. Stacey was so distraught she refused to attend school the next day. Stacey felt embarrassed by her looks and told a social worker she never wanted to see her parents again.

Mother did not believe she had done anything wrong. She said Stacey’s braids were too tight and this was not healthy. Mother dismissed Stacey’s trauma, said Stacey’s hair would grow back, and she would get “over it.” Mother suspected the foster mother manipulated Stacey and trained her to lie. Based on mother’s disparaging comments about the foster mother the social worker suspected mother cut Stacey’s hair because of her jealousy and resentment toward the foster mother. The worker reminded the parents Stacey was a sensitive young girl who cared about her appearance and admonished them to show more empathy toward their daughter. The parents apologized and agreed to pay for a professional hair cut for Stacey.

At the hearing, Stacey’s counsel asked the court to discontinue overnight visits because they had proved so detrimental to Stacey’s emotional well-being. Counsel expressed concern mother might be drinking again because mother had diluted her recent test samples. The court permitted mother to have unmonitored day visits with Stacey provided she tested clean, and did not dilute her test samples.

April 2007 Interim Report For Continued Contested 18-Month Review Hearing

In March, the parents resumed having overnight visits with Stacey with no reported problems. Mother continued with her case plan, father’s physical health improved, they continued to maintain the house properly, and the DCFS found no evidence mother had resumed drinking. The DCFS recommended that the court order Stacey returned to her parents with continued in-home family preservation services.

The DCFS’s Ex Parte Application

On April 20, 2007 the DCFS requested (1) a change in visits from unmonitored overnight visits to monitored day visits; (2) an order for a psychiatric examination of mother; and (3) to continue the permanent planning hearing until after review of the report on mother’s mental condition.

During an overnight visit in March, and after the hair-cutting incident in February, mother shaved Stacey’s eyebrows to eliminate what Stacey said mother referred to as her “unibrow.” Stacey was offended that mother shaved her eyebrows without her consent. Stacey asked the social worker to tell mother “‘to stop picking on me’” and “‘not to touch my body any more.’”

Mother denied shaving Stacey’s eyebrows and claimed the foster mother told Stacey to lie so the foster mother could keep her daughter. Mother did not understand that her acts had betrayed Stacey’s trust and caused Stacey emotional harm.

The social worker was unsure whether mother was acting out of anger to spite the foster mother, or whether mother had mental health problems, previously masked by her alcoholism. For these reasons, the DCFS requested a supplemental psychiatric exam for mother.

At the hearing, Stacey’s counsel joined the DCFS in requesting further visits be monitored and reported Stacey was now “terrified” of having unmonitored contact with her parents. The court directed monitored visitation until the next court date.

May 2007 Judicial Review Hearing

Before a scheduled visit on May 4, 2007 mother and the foster mother got into an argument and were face-to-face yelling at each other until a social worker intervened. Mother was upset Stacey had braided hair again. Because Stacey’s hairstyle had been such a point of contention between mother and the foster mother, the social worker asked the foster mother to stop braiding Stacey’s hair, despite Stacey’s requests to do so.

Stacey loved her foster mother and even idealized her. Stacey loved the way the foster mother cooked meals, she loved helping the foster mother clean and vacuum the house, and appreciated the positive reinforcement the foster mother gave when she did a particularly good job cleaning. Stacey told the social worker she wanted to live with her foster mother and did not want to go home to her parents. Stacey did not even want to have visits with her parents because she thought mother was “mean” to her foster mother.

Stacey’s therapist similarly observed that Stacey had an idealized relationship with the foster mother and noted Stacey became increasingly angry with mother after the therapist worked with mother to teach her how to set limits and enforce discipline for Stacey.

At the hearing, the court continued family reunification services, directed the DCFS to arrange a second psychiatric evaluation for mother and ordered Stacey moved into a new foster home within the week. The court expressed concern Stacey’s current placement might be an impediment to reunification with her parents, and in this sense, detrimental to Stacey.

Mother’s July 2007 Psychiatric Evaluation

Dr. Suzie Dupee also conducted the second psychiatric evaluation of mother and an evaluation of her relationship with Stacey. During an observed visit, the doctor noticed mother and Stacey interacted very poorly. Stacey did not want to see mother, walked across the room to avoid her, and rejected mother’s request for a hug. Stacey told the doctor she was upset mother had cut her hair and shaved her eyebrows. Mother denied she had done anything wrong. Stacey accused mother of lying, and when mother persisted, Stacey reacted by screaming.

Stacey told the doctor she did not want to visit with her parents. Stacey wanted to resume living with her previous foster mother, of whom she was very fond, and whom she missed very much. Stacey directed Dr. Dupee to write in her report she did not love mother, did not want to live with mother, and wanted nothing further to do with mother, and felt the same about father. Stacey asked Dr. Dupee to tell her previous foster mother she loved her, missed her and wanted to do things with her. Stacey said she had three wishes, namely, to (1) ride on a rollercoaster; (2) ride on a Ferris wheel; and (3) live with her previous foster mother.

Dr. Dupee concluded mother had very limited cognitive ability but no major mental illness. The doctor observed that Stacey’s relationship with mother had deteriorated since she last evaluated the family in 2005, and commented, “Even though [mother] is now allegedly sober and complying with court-ordered parenting classes and counseling, she has no ability to parent a child. She has no innate or maternal understanding of Stacey’s emotional or physical needs. She outrightly lies to Stacey in order to present herself positively. Her actions by cutting Stacey’s hair and shaving her eyebrows are an egregious example of her limited understanding of Stacey’s emotional well-being. . . . ”

Dr. Dupee found Stacey was a “severely emotionally disturbed young girl.” “She has endured maltreatment and neglect for most of her life until she was placed in the care of her foster mother, []. Stacey’s attachment to [her former foster mother] is very strong. Clearly Stacey views [her] as the only maternal figure to whom she has ever been attached.”

In the doctor’s view, Stacey continued to display speech problems, poor social skills and clingy, overly familiar behavior the doctor diagnosed as reactive attachment disorder.

August 2007 Judicial Review Hearing

The social worker reported her suspicions mother was drinking again. During one unannounced visit, the social worker saw mother throw an empty vodka bottle into the trash, and on another unannounced visit mother grabbed a bottle and ran out of the side door of the house. Mother had also failed to show up for scheduled testing. Father said he told mother not to drink but admitted he could not control mother’s actions.

The DCFS recommended termination of reunification services, and that the court identify adoption as the permanent plan for Stacey. The DCFS began home studies on two prospective persons interested in adopting Stacey: her former foster mother, and a paternal aunt.

At the hearing on August 3, 2007 the court found the parents had complied with their case plan but found a substantial risk of detriment to Stacey’s physical and mental health if returned to her parents’ care. The court based its finding on the fact mother had not demonstrated an ability to properly tend to Stacey’s needs and the fact father could not protect Stacey from mother because of his own limited abilities. The court terminated reunification services and granted the DCFS the discretion to place Stacey back in her former foster mother’s care.

Section 366.26 Reports

In September Stacey moved into another foster home. These foster parents indicated they might be interested in adopting Stacey if, for some reason, the former foster mother did not adopt Stacey.

Stacey’s former foster mother stated she was eager to adopt Stacey and to make her a permanent member of her family. The adoption social worker noted the former foster mother (prospective adoptive mother) had met all of Stacey’s special needs by being actively engaged in Stacey’s special education classes and therapy. The worker also noted the close and loving relationship the prospective adoptive mother had with Stacey. The study of her home for the adoption report was not yet complete, but the adoption caseworker reported she saw no “red flags.”

By October Stacey enthusiastically endorsed the plan of adoption by her former foster mother and wanted to move to her home immediately. Stacey did not want to have any more visits with her parents, and had not visited with them for months.

The DCFS concluded it was in Stacey’s best interest to terminate parental rights as soon as possible so Stacey could be adopted and enjoy “permanency in a safe and nurturing home.”

On December 5, 2007 counsel for the DCFS informed the court Stacey was again living with her former foster mother, prospective adoptive mother, and that the adoption study of her home would be complete within two months. Counsel explained the DCFS postponed the home study until October when Stacey became certain she wanted to be adopted. The court continued the matter for a report from Stacey’s therapist to determine whether parental visits would be detrimental to Stacey.

Stacey’s therapist submitted a letter to the court, but declined, as a matter of policy, to express a view whether parental visits would be detrimental to Stacey. The therapist recommended continued treatment for Stacey to assist her in transitioning into adoption and to help her deal with potential problems of separation from her biological parents and her feelings of anger over her multiple placements in the past few months.

Over objections by counsel for Stacey and the DCFS, the court permitted the parents monitored visits at the DCFS office.

At the first arranged visit, Stacey was visibly nervous and fearful when her parents arrived. She asked when the visit would be over and whether they had to have more visits. At the second visit Stacey appeared more relaxed. She did not interact with father, who slept through the entire visit. At the third visit Stacey ignored father and refused his request for a kiss. Stacey played on a slide during most of the visit but at some point asked mother to play with her on the slide. When the social worker started to leave her chair Stacey ran over to her and begged her not to leave her alone with her parents. Stacey appeared happy when the visit ended. In the social worker’s opinion, Stacey had no meaningful relationship with her parents and appeared bored during the visit.

Section 366.26 Hearing

At the contested section 366.26 hearing on January 17, 2008 Stacey’s counsel and counsel for the DCFS argued in favor of adoption. Both mother and father opposed the plan for adoption and requested the court to continue the hearing until after they received copies of the completed study of the prospective adoptive mother’s home.

In analyzing Stacey’s relationship with her parents, the court noted, “[e]very single professional that has had contact with Stacey has expressed concern regarding her relationship with the parents, from the school employees who came in here from day one, to the therapists.” The court considered exceptions to termination of parental rights and concluded it would be detrimental for Stacey to continue her relationship with her parents. “There are children every day who grow up in dirty homes, dysfunctional homes, homes with delayed parents who come out of that feeling a part of that home, bonded in that home. Except Stacey is not one of those children. Stacey lived there the first five years of her life. Never became used to the home environment, her parents’ behavior. Her parents’ behavior was already embarrassing . . . before she came into the system and continues to be. [¶] The first type of child I explained, it might be detrimental to terminate parental rights. In this case, whether they have a parental role or not, I have a case where a child is embarrassed by them and so much, not wanting to go back to that home; at times hasn’t want[ed] to visit.

“We have therapists who have discussed the detriment to her emotionally because of her relationship with her parents. It just seems to me it’s very clear for this child, even if the parents have a parental role in the relationship, it does not outweigh the benefits of adoption. It would not be detrimental to sever that relationship so she could be adopted and move on with her life.”

The court denied the request for a continuance, found Stacey adoptable, and terminated the parents’ parental rights.

DISCUSSION

Adoptability Finding

Mother and father acknowledge they did not object to the court’s finding Stacey was adoptable. They nevertheless assert their failure to object in the juvenile court does not forfeit their right to contest the sufficiency of the evidence to support the court’s finding Stacey was adoptable. (See, e.g., In re Brian P. (2002) 99 Cal.App.4th 616, 623 [“while a parent may waive the objection that an adoption assessment does not comply with the requirements provided in section 366.21, subdivision (i), a claim that there was insufficient evidence of the child’s adoptability at a contested hearing is not waived by failure to argue the issue in the juvenile court”]; In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561 [a party does not forfeit a claim of insufficient evidence to support a factual finding by failing to make the specific objection in the trial court]; see also, People v. Butler (2003) 31 Cal.4th 1119, 1126 [a challenge to the sufficiency of the evidence to support a factual finding is an “obvious” exception to the appellate rule of forfeiture by failing to object in the trial court].) Accordingly, mother and father contend insufficient evidence supports the court’s finding Stacey was adoptable.

A 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. (§ 366.26, subd. (c)(1); In re Carl R. (2005) 128 Cal.App.4th 1051, 1060.) “Clear and convincing” evidence requires a finding of high probability. “The evidence must be so clear as to leave no substantial doubt.” (In re Brian P., supra, 99 Cal.App.4th at p. 624.) We review the court’s finding of adoptability to determine whether the record contains substantial evidence to support its finding. (Id. at pp. 623-624.)

The question of adoptability usually focuses on the child, to determine whether the child’s age, physical condition, and emotional state make it difficult to find an adoptive family. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650-1651.) Because the focus is on the child, it is not necessary to a finding of adoptability that the child already be in a prospective adoptive home. (Id. at p. 1650.) The existence of a prospective adoptive family, however, is evidence the child’s attributes make the child likely to be adopted within a reasonable time, either by the prospective adoptive family or by some other family. (In re Asia L. (2003) 107 Cal.App.4th 498, 510.)

Factors that might make it difficult to find a person willing to adopt a child include “membership in a sibling group,” “diagnosed medical, physical, or mental handicap[s],” a child’s age of “seven years or more” (§ 366.26, subd. (c)(3)), or developmental or emotional problems. (In re Amelia S. (1991) 229 Cal.App.3d 1060, 1063, 1065.)

On the other hand, a “child’s young age, good physical and emotional health, intellectual growth and ability to develop interpersonal relationships are all attributes indicating adoptability.” (In re Gregory A., supra, 126 Cal.App.4th 1554, 1562.)

There are aspects of Stacey’s life which could have made it difficult to find an adoptive parent for her, including the facts (1) she is now nine years old; (2) she suffers from delayed language and speech; (3) she has been diagnosed with reactive attachment disorder; and (4) has severe emotional problems.

However, it is important to note all of these negative aspects of Stacey’s life improved while living with the prospective adoptive mother. She provided Stacey a protective and nurturing environment and Stacey thrived in her care. Stacey learned how to feed herself, tie her own shoes, vacuum and clean the house. It is apparent from the reports Stacey’s self-esteem and confidence increased considerably by learning these and other new skills. Stacey developed an exceptionally strong emotional attachment to the prospective adoptive mother likely because Stacey felt so happy and protected in the prospective adoptive mother’s home, which fostered her emotional stability.

Living with the prospective adoptive mother also had a positive effect on Stacey’s delayed speech and learning disabilities. The prospective adoptive mother assisted Stacey daily with her special education classes and homework, and made sure Stacey attended every individual speech therapy session. Stacey’s problems ameliorated considerably with this daily attention and interaction with a caring adult in a positive setting.

Several other factors in this case show Stacey is an adoptable child as a general matter: (1) her medical records show Stacey is in excellent health; (2) Stacey is developing normally; (3) Stacey interacts well socially with her peers; and (4) Stacey is diligent in her school and homework.

In addition, Stacey is already in an adoptive home living with the only person she has ever considered a parental figure. A home study for the prospective adoptive mother was essentially complete more than six months ago. Stacey has also enjoyed a close bond with her prospective adoptive mother for years. It is apparent Stacey’s problems have not been an impediment to her adoptability because the prospective adoptive mother is eager to adopt Stacey and make her a permanent member of her family. Moreover, Stacey’s last set of foster parents also asserted an interest in adopting Stacey. “[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 Sarah M., supra, 22 Cal.App.4th at p. 1650.)

Contrary to the parents’ suggestion, the present case bears no resemblance to the situation in In re Jerome D. (2000) 84 Cal.App.4th 1200. There the court reversed a finding of adoptability, which was apparently based solely on the caretaker’s willingness to adopt. The agency had not begun a home study and had not performed background checks on the caretaker. As things turned out, Child Protective Services listed the caretaker as a perpetrator of child abuse and neglect, and he had three criminal convictions for assaulting the child’s mother. In addition, the child had a prosthetic eye, which required special care, and which the court did not properly consider before finding the child adoptable. (Id. at. pp. 1203, 1205.) The decision in In re Amelia S., supra, 229 Cal.App.3d 1060 is also distinguishable. In In re Amelia S. the evidence showed some foster parents were considering adopting some of the parents’ 10 children who suffered from a variety of developmental, emotional, and physical problems. (Id. at p. 1063.) Evidence some of the foster parents might adopt some of the children was insufficient to show a likelihood of adoption of all 10 children, much less by clear and convincing evidence, as the statute required. (Id. at pp. 1062, 1065.) Accordingly, the court reversed the court’s order terminating parental rights. (Id. at p. 1066.)

The record in the present case, in contrast, contains clear and convincing evidence to support the court’s finding Stacey was likely to be adopted in a reasonable time—well beyond the prospective adoptive mother’s commitment to adopting her.

ICWA Notice

In 1978, Congress passed ICWA, 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 . . . homes which will reflect the unique values of Indian culture. . . . ’” (In re Levi U. (2000) 78 Cal.App.4th 191, 195.) “Among the procedural safeguards included in ICWA is a provision for notice, which states in part: ‘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 child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.’ (25 U.S.C. § 1912(a).) The Indian status of a child need not be certain or conclusive to trigger ICWA’s notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.)” (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.)

The parents claim the DCFS made numerous errors in preparing and sending out the ICWA notices in this case. The DCFS forthrightly concedes many of the alleged errors. A review of the notices shows, among other flaws, the DCFS (1) incorrectly listed Stacey’s birth date on the notices; (2) misspelled the name of father’s ancestor alleged to be of Navajo heritage and did not indicate she might be of Navajo heritage; (3) did not indicate on the notice father’s belief one of his ancestors had lived on a reservation in Arizona; and (4) notices were not mailed to the designated agents listed in the Federal Register.

Accordingly, the order terminating parental rights is reversed for the purpose of providing proper notice to the Bureau of Indian Affairs and Navajo tribes in compliance with ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695, 704.)

DISPOSITION

The court’s finding of adoptability is affirmed. The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court for the sole purpose of compliance with the Indian Child Welfare Act, including ordering the Department of Children and Family Services to comply with the notice provisions of the Indian Child Welfare Act and the holding of a hearing to determine whether the Indian Child Welfare Act applies. If neither the Bureau of Indian Affairs nor Navajo tribes respond indicating Stacey is an Indian child within the meaning of the Indian Child Welfare Act, or fails to respond within the designated period after the notice is sent (§ 224.3, subd. (e)(3)), the order terminating parental rights shall be reinstated. If the Bureau of Indian Affairs or a Navajo tribe determines Stacey is an Indian child within the meaning of the Indian Child Welfare Act, the juvenile court shall conduct further proceedings, applying the appropriate provisions of the Indian Child Welfare Act, the Welfare and Institutions Code, and the California Rules of Court.

We concur: MALLANO, P. J., ROTHSCHILD, J.


Summaries of

In re Stacey G.

California Court of Appeals, Second District, First Division
Sep 9, 2008
No. B205214 (Cal. Ct. App. Sep. 9, 2008)
Case details for

In re Stacey G.

Case Details

Full title:In re STACEY G., a Person Coming Under the Juvenile Court Law. DEPARTMENT…

Court:California Court of Appeals, Second District, First Division

Date published: Sep 9, 2008

Citations

No. B205214 (Cal. Ct. App. Sep. 9, 2008)