Opinion
F076525
06-28-2018
In re RICHARD L. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. ASHLEY F. et al., Defendants and Appellants.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Ashley F. Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant Richard L. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. 07CEJ300255-2, 07CEJ300255-3)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant Ashley F. Roshni Mehta, under appointment by the Court of Appeal, for Defendant and Appellant Richard L. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Detjen, Acting P.J., Peña, J. and Smith, J.
-ooOoo-
In these dependency proceedings, the juvenile court exercised its jurisdiction over one-year-old Richard and four-month-old Mason and ordered reunification services for appellants, Ashley F. (mother) and Richard L. (father). Though mother identified American Indian heritage through the Apache and Pasqua Yaqui Tribes, the Fresno County Department of Social Services (department) only complied with the notice requirements of the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) as to the Apache tribes. The court provided reunification services to the six-month review hearing and terminated parental rights in October 2017. (Welf. & Inst. Code, § 366.26.)
Mother claimed "Yaqui" tribal ancestry and the tribe is referred to as the "Yaqui" tribe throughout the record. According to mother in her opening brief, Yaqui was formerly referred to as the Pasqua Yaqui Tribe of Arizona. However, the list of "Federally Recognized Tribes," which she cites, lists the tribe as the "Pasqua Yaqui Tribe of Arizona." We will refer to the tribe as the Pasqua Yaqui Tribe.
Statutory references are to the Welfare and Institutions Code unless otherwise noted. --------
In this appeal, mother contends the juvenile court's findings the department complied with the ICWA notice requirements and the children were adoptable were error. Father joins in mother's arguments pursuant to California Rules of Court, rule 8.200(a). We agree with appellants' contention—and the department concedes on appeal—that the juvenile court erred in finding the department complied with the notice requirements of the ICWA. We reject, however, appellants' challenge regarding the juvenile court's adoptability finding. Accordingly, we conditionally reverse the order terminating parental rights and remand for the limited purpose of allowing the juvenile court to comply with the notice provisions of the ICWA.
PROCEDURAL AND FACTUAL BACKGROUND
In August 2016, the department was notified that mother and newborn Mason tested positive for methamphetamine. She and father denied any drug use and were uncooperative with the investigating social worker. Mother said she last used methamphetamine two years before. She had a prior child welfare case involving her daughter, L.F., who was removed from her custody as a newborn in October 2007 after she and L.F. tested positive for methamphetamine. Mother was provided reunification services, including substance abuse treatment and parenting instruction but failed to comply. The juvenile court terminated her reunification services in February 2009 and placed L.F. with her father.
The department took Richard and Mason into protective custody because the parents were not forthcoming about their methamphetamine use and voluntary family maintenance did not appear to be a viable option. The department filed a dependency petition on the children's behalf and placed them in foster care. They were subsequently placed with their maternal grandmother.
The parents each filed an ICWA-020 form "Parental Notification of Indian Status," mother indicating that she may have "Yaqui" and Apache Indian ancestry and father indicating that he had no Indian ancestry as far as he knew. The maternal grandfather, Julian A., confirmed the family had "Yaki" ancestry but said he was not able to trace the lineage because the maternal great-grandmother was not registered.
On August 30, 2016, the department mailed ICWA-030 form "Notice of Child Custody Proceeding for Indian Child" to nine registered Apache tribes, the Round Valley Reservation and the Bureau of Indian Affairs. The notice included ancestral information, beginning with maternal grandfather Julian A. and including the maternal great-grandmother. There was no address listed for Julian A. and no address, date of birth or death for the maternal great-grandmother. The department did not provide notice to the Pasqua Yaqui Tribe.
The parents appeared at the detention hearing on August 31, 2016, with appointed counsel. The juvenile court ordered the department to meet with mother within five days in order to complete the necessary forms and to send proper notice to any identified tribe or to the Bureau of Indian Affairs. The court found a prima facie case existed to detain the children from the parents and ordered supervised visitation to occur a minimum of twice a week.
The department later filed responses from the Apache tribes, indicating the children were not eligible for membership based upon the information provided.
On January 4, 2017, the juvenile court exercised its dependency jurisdiction over the children, removed them from parental custody and ordered the parents to participate in substance abuse, mental health and parenting services. The court found the ICWA did not apply and set the six-month review hearing for June 14, 2017.
Neither parent participated in their court-ordered services to any significant degree. Mother completed a parenting program and an initial mental health assessment but was dropped from therapy for failure to attend therapy sessions. She also completed a substance abuse evaluation, resulting in a recommendation for inpatient treatment. She entered inpatient treatment in January 2017 but left after two days, stating she did not believe it met her needs. In March 2017, she informed the social worker she was participating in outpatient substance abuse treatment but did not provide documentation verifying her participation. She enrolled in random drug testing in September 2016, tested negative once and failed to test thereafter. Father was even less compliant. They visited the children twice a week under supervision and mother was particularly attentive and affectionate.
In May 2017, the department filed a modification petition under section 388, asking the juvenile court to terminate the parents' reunification services because of their poor prognosis for reunification. The court set a hearing on the petition for June 14, 2017, to coincide with the six-month review hearing. Meanwhile, the department filed its report for the six-month review hearing, recommending the court terminate reunification services and set a section 366.26 hearing.
On June 14, 2017, at a six-month review hearing, the juvenile court terminated reunification services, denied the section 388 petition as moot and set a section 366.26 hearing for October 4, 2017. The court reduced visitation to a minimum of twice a month for an hour. Neither parent challenged the setting order by extraordinary writ petition.
In its report for the section 366.26 hearing, the department recommended the juvenile court terminate parental rights and order adoption as the children's permanent plan. The department opined that the children were adoptable as they were happy, healthy and developmentally on target. They were placed with their maternal grandmother in November 2016 and were doing well in her home. She and the children's maternal uncle planned to be the prospective adoptive parents. The grandmother was retired and single and moved to the area to care for the children. The uncle was single and continued to live in the Sacramento area where he worked as an area manager. Neither the grandmother nor the uncle has a child welfare history and the grandmother did not have a criminal history. The uncle was in the process of getting fingerprinted and attending orientation and classes through Sacramento County. The grandmother and uncle said they loved the children and would like to be their forever family. They were very excited and looking forward to adopting them. In September 2017, a social worker visited the home and met with the grandmother and uncle. She observed the interactions between the children and their uncle as loving and supportive. The children ran to the uncle and hugged him, sat on his lap, brought him a book to read to them and showed him their toy. They had taken the children to Disneyland and both children enjoyed the rides and seeing the characters.
The department also reported the children appeared comfortable in mother's presence. She was nurturing and affectionate; she hugged, kissed and praised them. They sat on her lap or close to her and she spoke lovingly to them. She promoted their development by using educational toys during play, reading to them and praising them when they demonstrated their knowledge and abilities. However, the department opined there was not a significant parent-child relationship between mother and the children.
The parents appeared at the section 366.26 hearing on October 4, 2017, with counsel who entered a general objection to the order terminating parental rights. The court found the children were likely to be adopted and terminated parental rights.
DISCUSSION
I. ICWA Notice
Appellants contend the department failed to comply with the ICWA because it failed to provide notice to the Pasqua Yaqui Tribe and provided defective notice to the Apache tribes because it did not include the current or former address and tribal affiliation of the maternal grandfather and the address and dates of birth and death of the maternal great-grandmother. Respondent concedes the error and we accept its concession.
"Congress enacted ICWA to further the federal policy ' "that, where possible, an Indian child should remain in the Indian community." ' " (In re W.B., Jr. (2012) 55 Cal.4th 30, 48.) "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).)" (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783.) This notice requirement, which is also codified in California law (§ 224.2), enables a tribe to determine whether the child is an Indian child and, if so, whether to intervene in or exercise jurisdiction over the proceeding. No foster care placement or termination of parental rights proceeding may be held until at least 10 days after the tribe received the required notice. (25 U.S.C. § 1912(a); see § 224.2, subd. (d).) When the notice provision is violated, an Indian child, parent, Indian custodian, or the Indian child's tribe may petition to invalidate the proceeding. (25 U.S.C. § 1914.)
We emphasized the importance of ICWA compliance in In re H.A. (2002) 103 Cal.App.4th 1206 (H.A.), specifically requiring the agency to complete and serve the form ICWA-030 (notice form) along with a copy of the dependency petition, and file the completed notice form with the juvenile court along with copies of the proof of the registered mail or certified mail and the return receipt(s). (Id. at p. 1215.) It is essential that the department provide the Indian tribe with as much information as is known about the child's ancestors, especially the one with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Notice must include all of the following information, if known: the child's name, birthplace, and birthdate; the name of the tribe in which the child is enrolled or may be eligible for membership; names and addresses (including former addresses) of the child's parents, grandparents, and great-grandparents, and other identifying information; and a copy of the dependency petition. (25 C.F.R. § 23.111(d)(1)-(5) (2015); § 224.2, subd. (a)(5)(A)-(D); In re D.W. (2011) 193 Cal.App.4th 413, 417; In re Mary G. (2007) 151 Cal.App.4th 184, 209.) All this information may not be available, even with the inquiry of available relatives, but the department has an ongoing duty to interview the minor's parents and extended family, if known, concerning the child's membership status or eligibility. (§ 224.3, subds. (a) & (c); Cal. Rules of Court, rule 5.481(a)(4).)
As is evident, the department had reason to know the children may have Pasqua Yaqui Indian ancestry but failed to notify the Pasqua Yaqui Tribe of these dependency proceedings as required under the ICWA. In addition, the department failed to provide all the information available to it about the maternal grandfather and maternal great-grandmother even though the social worker had direct contact with the maternal grandfather.
"Unless a tribe has participated in or expressly indicated no interest in the proceedings, the failure to comply with ICWA notice requirements [citation] constitutes prejudicial error." (H.A., supra, 103 Cal.App.4th at p. 1213.) The department concedes that the notice provisions of ICWA were not followed and the record here is consistent with that concession. Thus, we conditionally affirm the juvenile court's orders and remand for ICWA compliance.
II. Adoptability
Mother contends there was insufficient evidence the children were likely to be adopted within a reasonable time because the maternal uncle had not completed the criminal background check and there were no other prospective adoptive parents identified in the event he was not suitable for adoption.
"Once [the juvenile court] sets a hearing pursuant to section 366.26 to select and implement a permanent plan for a dependent child, the department must prepare an assessment [citations], frequently referred to as an adoption assessment. Such an adoption assessment provides the information necessary for the juvenile court to determine whether it is likely the child will be adopted [citation] and to consequently order termination of parental rights." (In re G.M. (2010) 181 Cal.App.4th 552, 559 (G.M.).) The assessment must include "[a] preliminary assessment of the eligibility and commitment of any identified prospective adoptive parent ...." (§ 366.21, subd. (i)(1)(D).) "A child's current caretaker may be designated as a prospective adoptive parent if the child has lived with the caretaker for at least six months, the caretaker currently expresses a commitment to adopt the child, and the caretaker has taken at least one step to facilitate the adoption process. (§ 366.26, subd. (n)(1).)" (G.M., supra, 181 Cal.App.4th at p. 559.)
At a section 366.26 hearing, the juvenile court must determine by clear and convincing evidence whether it is likely the minor will be adopted. (§ 366.26, subd. (c)(1).) If the court finds a likelihood of adoption, the court must terminate parental rights absent evidence termination would be detrimental to the minor under one of the exceptions to adoption. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) Appellants do not claim that any of the exceptions apply.
In determining adoptability, the juvenile court assesses the child's age, physical condition and emotional state and how these characteristics affect a prospective parent's willingness to adopt the child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) "To be considered adoptable, a [child] need not be in a prospective adoptive home and there need not be a prospective adoptive parent ' "waiting in the wings." ' [Citation.] Nevertheless, 'the fact that a prospective adoptive parent has expressed interest in adopting the [child] is evidence that the [child's] age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the [child]. In other words, a prospective adoptive parent's willingness to adopt generally indicates the [child] is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family.' " (In re R.C. (2008) 169 Cal.App.4th 486, 491 (R.C.), italics omitted.)
In assessing adoptability, some courts have divided children into two categories: those who are "generally adoptable" and those who are "specifically adoptable." A child is "generally adoptable" if the child's traits, e.g., age, physical condition, mental state and other relevant factors do not make it difficult to find an adoptive parent. A child is "specifically adoptable" if the child is adoptable only because of a specific caregiver's willingness to adopt. (R.C., supra, 169 Cal.App.4th at pp. 492-494.) " 'When a child is deemed adoptable only because a particular caregiver is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent's adoption and whether he or she is able to meet the needs of the child.' " (Id. at p. 494.)
As a preliminary matter, we address the terms "generally" and "specifically" adoptable. In our view, identifying a child as "generally" or "specifically" adoptable obfuscates the adoptability issue before the juvenile court, as those terms are not mentioned in section 366.26, the statute governing termination of parental rights. Further, the juvenile court is not required to assess the general and specific adoptability of a child or make such findings. Instead, section 366.26 merely requires the juvenile court to determine if the child is likely to be adopted within a reasonable time. In other words, it requires the juvenile court to determine if the child is adoptable.
"Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is 'likely' that the child will be adopted within a reasonable time. [Citations.] We review that finding only to determine whether there is evidence, contested or uncontested, from which a reasonable court could reach that conclusion. It is irrelevant that there may be evidence which would support a contrary conclusion." (In re K.B. (2009) 173 Cal.App.4th 1275, 1292.) Moreover, we review the record in the light most favorable to the juvenile court's findings, and draw all inferences from the evidence that support the court's determination. (In re Nada R. (2001) 89 Cal.App.4th 1166, 1177.)
Here, the department opined the children were adoptable based on their personal characteristics; i.e., they were well-adjusted and developmentally on target. The children were also adoptable by virtue of their placement with prospective adoptive parents who wanted to adopt them. Nevertheless, appellants argue the children's uncle was an impediment to adoption because he had not been cleared by the department. Relying on In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.), they argue there is insufficient evidence Richard and Mason are adoptable. We find Valerie W. distinguishable on several key points.
In Valerie W., a mother and her adult daughter applied jointly to adopt two children, one with a potential serious genetic or neurological disorder and the other with emotional problems. (Valerie W., supra, 162 Cal.App.4th at pp. 5-7, 11, 14.) The children were considered adoptable only because the mother and her daughter were willing to adopt. (Id. at p. 15.) The agency failed, however, to provide sufficient evidence that either the mother or her daughter would be willing or able to adopt the children if the other were found unsuitable or identify another prospective adoptive parent. The appellate court concluded there was insufficient evidence to support the court's adoptability finding and remanded the case to the juvenile court. (Id. at pp. 13-16.)
Here, Richard and Mason are not adoptable just because their grandmother and uncle wanted to adopt them. Rather, they would be considered "generally" adoptable by virtue of their young age and good physical and mental health. Further, there was no evidence the grandmother's suitability to adopt depended on the uncle's suitability or that the grandmother was unwilling or unable to adopt the children as a single adoptive parent.
We affirm the juvenile court's finding the children are adoptable and remand for the limited purpose of allowing the juvenile court to comply with the notice provisions of the ICWA.
DISPOSITION
The orders of the juvenile court terminating parental rights are conditionally reversed and the matter remanded to the juvenile court for the sole purpose of complying with its duty of inquiry and notice provisions of the Indian Child Welfare Act (ICWA) and for the court to determine whether the ICWA applies in this case. If the court determines the ICWA does not apply, the orders shall be reinstated. If information is presented to the juvenile court affirmatively indicating the minors are Indian children as defined by the ICWA and the juvenile court determines the ICWA applies to this case, the juvenile court is ordered to conduct a new section 366.26 hearing in conformance with all provisions of the ICWA.