In re A.D.
Filed 7/12/13 In re A.D. CA3
NOT TO BE PUBLISHED
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opinion has not been certified for publication or ordered published for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.
IN THE COURT OF
APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE
DISTRICT
(Sacramento)
In re A.D. et al.,
Persons Coming Under the Juvenile Court Law.
SACRAMENTO
COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Plaintiff and Respondent,
v.
L.A.,
Defendant and Appellant.
C072659
(Super. Ct. Nos.
JD230818 & JD230819)
L.A., mother of the minors, appeals from orders
of the juvenile court terminating her
GTLETC000001 xpl 1 l "Welf. & Inst. Code, §§
366.26, 395" Welf. & Inst.
Code, §§ 366.26, 395.)
Appellant contends the court and the Sacramento County Department of Health and Human
Services (Department) failed to comply with the notice provisions of the
(ICWA). ( ADDIN BA xc <@st> xl 24 s
GTLETC000002 xpl 1 l "25 U.S.C. § 1901 et seq."
25 U.S.C.
§ 1901 et seq.) Appellant
further asserts that the court erred in terminating her parental rights because
there was insufficient evidence the minors were likely to be adopted in a
reasonable time. We affirm.
FACTS
The minors, 5-month-old A.D. and
23-month-old R.D., were removed from parental custody in July 2010 due to
domestic violence in the home. Both
appellant and the minors’ father were Alta California Regional Center clients and had mental health issues which
affected their parenting. In September
2010, the court found jurisdiction, adjudged the minors dependents, and ordered
the parents to comply with the case plan.
The minors were placed with the maternal great-aunt.
The review reports disclosed that
both A.D. and R.D. had developmental delays and were eligible for child
development services from Alta California Regional Center and speech therapy from Easter Seals
Disability Services (Easter Seals). R.D.
had additional emotional and behavioral issues, was easily over-stimulated, and
did not know how to calm herself or interact appropriately with others.
After 6 months of services, A.D. no
longer needed physical therapy, but remained in child development services for
work on her cognitive, social, emotional, and communication delays and had
in-home services from Easter Seals.
A.D.’s delays ranged from 2 to 11 months. Due to her
global development delays, R.D. was referred to a neurologist who ordered a
magnetic resonance imaging (MRI) test.
Her neurological status remained unclear. Due to her age and progress she no longer
qualified for services from Alta California Regional Center but could receive any necessary services through
the school district. She faced discharge
from the Easter Seals program due to lack of participation by the caretaker who
then re-engaged with the program. R.D.’s
delays ranged from 10 to 16 months. The
caretaker reported both minors had difficult behaviors including playing with
feces, but these behaviors were generally not seen by service providers. The social worker assessed that both minors
had special needs and were specifically adoptable. A maternal aunt was assessed for possible
placement of the minors and had several visits with them. During their visits the minors slept well and
R.D. did not play with her feces.
The 18-month review report filed in
January 2012 stated A.D. was still participating in Alta California Regional Center and Easter Seals services and was 9 to 18
months delayed. R.D. was being assessed
by the school district for her global delays.
In December 2011 the minors were placed in respite care when the
maternal great-aunt was out of town. The
respite care provider said that the minors were high maintenance and found them
challenging despite her experience and the assistance of staff. The minors were removed from the relative
placement with the maternal great-aunt’s consent and placed in foster care in
February 2012. Appellant failed to
reunify after 18 months of services and the court set a hearing pursuant to ADDIN
BA xc <@osdv> xl 14 s GTLETC000016 l "section 366.26" section 366.26 to select a permanent
plan.
The July 2012 report for the ADDIN
BA xc <@$osdv> xl 14 s GTLETC000016 section 366.26 hearing stated that A.D.
remained an Alta
California Regional Center client for services to address her
delays. Her skills had improved and her
delays now ranged from zero to nine months.
She still had some cognitive delays and behavioral issues. R.D. also had some cognitive and behavioral
issues and was to begin Early Head Start to address her speech and language
delays. The current caretakers were
interested in adopting the minors who had been in their home for five
months. An adoption home study was in
progress. The court continued the ADDIN
BA xc <@$osdv> xl 14 s GTLETC000016 section 366.26 hearing to secure additional
information on the home study.
An addendum filed in October 2012
stated both minors were now meeting their physical milestones and showed good
motor skills. A.D. was more advanced
linguistically and R.D. remained language delayed but both minors had shown
improvement. Similarly both minors were
showing behavioral improvement and increasing ability to cooperate with
directions. The caretakers continued to
work with therapists and specialists to address the minors’ difficult
behaviors. R.D. remained the more
challenging of the two. The caretakers
had completed all the necessary paperwork for the adoption home study and it
was anticipated that the home study would be completed in December 2012.
At the ADDIN
BA xc <@$osdv> xl 14 s GTLETC000016 section 366.26
hearing the court stated: “One of the
things I am also considering is that the Court had some concerns and was not
convinced that there was clear and convincing evidence regarding the children’s
adoptability based upon the report that was presented in July.†The court referenced the minors’ delays and
behavioral issues, the short time they had been in the foster home and whether
the caretakers fully appreciated the minors’ special needs. The court noted that since then, the
Department submitted additional evidence which indicated the minors continued
to be maintained in the foster home, the caretakers remained committed to them
and had followed through with the home study process. The court concluded that it was now possible
to find by clear and convincing evidence that the minors were likely to be
adopted by the current caregivers who were familiar with the disabilities and
delays the minors had and accepted them.
The court terminated parental rights.
Facts relating to the ICWA issue
appear in the subsequent discussion on that point.
DISCUSSION
I
Appellant contends substantial
evidence does not support the court’s finding that the minors are likely to be
adopted within a reasonable time.
When the sufficiency of the evidence
to support a finding or order is challenged on appeal, even where the standard
of proof in the trial court is clear and convincing, the reviewing court must
determine if there is any substantial evidence--that is, evidence which is
reasonable, credible, and of solid value--to support the conclusion of the
trier of fact. ( ADDIN BA xc <@cs> xl 42 s
GTLETC000003 xhfl Rep xpl 1 l "In re Angelia P. (1981)
(1981) 28 Cal.3d 908, 924; ADDIN
BA xc <@cs> xl 47 s GTLETC000004 xhfl Rep xpl 1 l "In re Jason L. (1990)
Cal.App.3d 1206" In re Jason L.
(1990) 222 Cal.App.3d 1206, 1214.)
Determination of whether a child is
likely to be adopted focuses first upon the characteristics of the child. ( ADDIN BA xc <@cs> xl 47 s
GTLETC000005 xhfl Rep xpl 1 l "In re Sarah M. (1994)
(1994) 22 Cal.App.4th 1642, 1649.)
A child who might be considered unlikely to be adopted due to some
disability may nonetheless be found adoptable if a specific prospective
adoptive parent or family is willing to adopt the child. ( ADDIN BA xc <@$id> xl 13 s ID
xhfl Rep xpl 1 Id. at p 1650.) Courts
often refer to a child who is likely to be easily placed because the child is
healthy, young, and without significant behavioral or other problems as
“generally adoptable†and to a child who may be difficult to place due to age,
medical, emotional or behavioral problems as “specifically adoptable,†thereby
indicating that the child is only likely to be adopted within a reasonable time
by a specific caretaker who has been identified. In either case, the reviewing court will
affirm if substantial evidence establishes the likelihood that the child will
be adopted within a reasonable time. ( ADDIN BA xc <@cs> xl 44 s
GTLETC000006 xhfl Rep xpl 1 l "
Cal.App.4th 1293" In
re A.A. (2008) 167 Cal.App.4th 1292, 1313.) Such evidence exists in this case.
Both minors had significant
developmental delays when they entered foster care. The relative caretaker was not diligent in
seeing that they got the necessary services to remediate those delays but both
made some progress in her care. After
the minors were placed with the current caretakers, their physical delays
resolved to the point where support services on those issues were not required
and both minors made significant progress in other areas. A.D. had made greater overall progress than
had R.D. in language skills and cognition, but it was apparent both minors
remained specifically, rather than generally, adoptable.
At the first ADDIN
BA xc <@$osdv> xl 14 s GTLETC000016 section 366.26
hearing, the minors had not been with the current caretakers very long and the
level of the caretakers’ understanding of the minors’ special needs and their
commitment to the permanent care of the minors was unclear. However, by the second hearing, the current
caretakers had many more months of dealing with, and meeting, the minors’
special needs. Their ongoing commitment
to the minors was apparent in their zeal in engaging in services for the minors
and working with service providers to resolve the minors’ issues insofar as was
possible. Further, the caretakers had
completed the paperwork for the adoption home study, showing their intent to
provide permanence to the minors. There
was no evidence to suggest the home study would not be approved. The evidence amply supports the juvenile
court’s finding that the minors were likely to be adopted by their current
caretakers in a reasonable time.
II
Appellant contends the court erred
in failing to require notice to the Pomo Indian tribe(s) because the father
claimed Pomo ancestry and a relative, Aunt Vicky, who may have had information
on the matter was not located and questioned by the Department. Appellant further asserts that the Department
should have obtained the date and place of death of the paternal grandmother
when speaking with the paternal grandfather.
a) Facts
After the petitions were filed, each
parent filed an ICWA-020 form (Parental Notification of Indian Status). Appellant did not specify a tribe but
indicated she might have Indian ancestry.
Father claimed no Indian ancestry.
The detention report stated that appellant did not know if she had
Indian heritage. The father said that
his mother (the paternal grandmother) had Pomo Indian ancestry, she was
deceased, and he had no further information.
When questioned by the court at the detention hearing, appellant
suggested she might have Cherokee heritage.
The father said the paternal grandmother was born in Santa Rosa and she
and his Aunt Vicky told him they had Pomo Indian heritage but were not
enrolled. The court ordered both parents
to complete an Indian questionnaire and the Department to send notice to any
tribe which was disclosed as a result of the inquiry.
In August 2010, a declaration by the
paralegal assigned to investigate ICWA claims stated that he had not received a
questionnaire from appellant but sent notice to the Cherokee tribes with the
information he had available. The
declaration did not mention the Pomo tribe or father. Shortly thereafter, father filed an ICWA-020
form in which he claimed Pomo Indian heritage.
The court directed the parents to go directly to the social worker’s
office and provide whatever information was necessary to complete the notice
forms.
As a result of interviewing the
parents, the paralegal filed a second declaration stating that an amended
notice was sent to the Cherokee tribes.
At the interview, appellant disclaimed all Indian heritage based on her
conversations with a relative knowledgeable in her family history. The father also now disclaimed any Indian
heritage. Because the father was not
confident of the veracity of statements made about his Indian heritage by the
paternal grandmother, he called the paternal grandfather during the
interview. The paternal grandfather
could not recall any specific Indian heritage for himself or the paternal
grandmother, his estranged wife, other than the possibility of Cherokee
heritage on the paternal grandmother’s side.
The father and paternal grandfather provided family tree information and
the paralegal sent an amended notice of the proceedings to the Cherokee tribes.
In September 2010, the paralegal
reported that the Cherokee Nation and the United Keetoowah Band of Cherokee
Indians had responded to the notice and indicated that the minors were not
members or eligible to become members of the tribes. In October 2010, the Eastern Band of Cherokee
Indians also responded that the minors were not members or eligible to become
members of the tribe.
At a hearing on October 28, 2010,
the court reviewed the history of claims of Indian heritage which were made,
the Department’s inquiry and notice, and the responses of the three Cherokee
tribes. The Department confirmed that no
notice was sent to the Pomo tribes based on the paternal grandfather’s
disclaimer of any connection through himself or the paternal grandmother to
that tribal group. The court found the
minors were not Indian children and that the ICWA did not apply.
b) Notice to the Pomo Tribes
The ICWA protects the interests of
Indian children and promotes the stability and security of Indian tribes by
establishing minimum standards for, and permitting tribal participation in,
dependency actions. ( ADDIN BA xc <@st> xl 47 s
GTLETC000007 xpl 1 l "25 U.S.C. §§ 1901, 1902,
1903(1), 1911(c), 1912" 25 U.S.C. §§ 1901, 1902, 1903(1),
1911(c), 1912.) The juvenile court
and the Department have an affirmative duty to inquire at the outset of the
proceedings whether a child who is subject to the proceedings is, or may be, an
Indian child. ( ADDIN BA xc <@ru> xl 34 s
GTLETC000008 xpl 1 l "Cal. Rules of Court, rule
5.481(a)" Cal. Rules of Court,
rule 5.481(a).) If, after the
petition is filed, the court “knows or has reason to know that an Indian child
is involved,†notice of the pending proceeding and the right to intervene must
be sent to the tribe or the Bureau of Indian Affairs (BIA) if the tribal
affiliation is not known. ( ADDIN BA xc <@st> xl 16 s
GTLETC000009 xpl 1 l "25 U.S.C. § 1912"
25 U.S.C. § 1912;
ADDIN BA xc <@osdv> xl 7 s
GTLETC000017 xpl 1 l "§ 224.2" § 224.2; ADDIN
BA xc <@ru> xl 34 s GTLETC000010 xpl 1 l "Cal. Rules of Court, rule 5.481(b)" Cal. Rules of Court,
rule 5.481(b).)
It is not necessary that the child’s
Indian status be certain to implicate the notice requirements of ICWA. ( ADDIN BA xc <@cs> xl 47 s
GTLETC000011 xhfl Rep xpl 1 l "
Cal.App.4th 460" In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) It is the province of the tribe, not the
court, to determine whether the child is eligible for membership in the
tribe. ( ADDIN BA xc <@osdv> xl 21 s
GTLETC000018 xpl 1 l "§ 224.3, subd. (e)(1)"
§ 224.3, subd.
(e)(1).) However, there are
circumstances under which notice is not required, i.e., the information may be
too vague or speculative or a parent may retract the claim of Indian heritage
upon further investigation of the facts in the case. ( ADDIN BA xc <@cs> xl 42 s
GTLETC000012 xhfl Rep xpl 1 l "
Cal.App.4th 152" In re O.K. (2003) 106 Cal.App.4th 152, 157 [information too
vague]; ADDIN BA xc <@cs> xl 56 s
GTLETC000013 xhfl Rep xpl 1 l "
Cal.App.4th 1514" In
re Jeremiah G. (2009) 172 Cal.App.4th 1514, 1520-1521 [father retracted
his assertion of Indian heritage].)
Here, although father initially
claimed Pomo heritage based on what the paternal grandmother and Aunt Vicky
told him, he later concluded the information was questionable and disclaimed
any Indian ancestry. To ensure accuracy,
the father called the paternal grandfather during his interview with the ICWA
paralegal. The telephone call clarified
that he did not have Pomo heritage but might have some Cherokee heritage through
the paternal grandmother.
Appellant now asserts that the
father, due to his mental health and disability issues, was not a good
historian and the Department had a duty to track down Aunt Vicky and question
her. There is no evidence in the record
that the father’s disabilities impaired either his capacity to provide
information to the social worker and paralegal or his judgment in questioning
the veracity of the information provided by the paternal grandmother. The telephone call to the paternal
grandfather corroborated the father’s denial of Pomo ancestry. There is also no suggestion that Aunt Vicky
would have had better information that the paternal grandmother, whose claim
was questioned by the father and considered to be unfounded by the paternal
grandfather. Given that the Department
sent notice to the Cherokee tribes on information that was quite vague, notice
certainly would have been sent to the Pomo tribes had father not retracted his
claim of Pomo heritage. However, he did
retract the claim and notice was not required.
c) Statistical Data on the Paternal Grandmother
Appellant also faults the Department
for failing to secure information on the paternal grandmother’s date and place
of death when the paralegal was speaking with the paternal grandfather. The paralegal’s function is to investigate
reports of Native American ancestry and provide notice to the identified
tribes. We may presume that his official
duty, in this case, asking detailed questions to fill in the blanks of the notice
form, was regularly performed. ( ADDIN BA xc <@st> xl 17 s
GTLETC000014 xpl 1 l "Evid. Code, § 664"
Evid. Code, § 664.) In any event, it was unlikely that the
paternal grandfather, who was estranged from the paternal grandmother, would
have information on her date and place of death. The paternal grandfather clearly provided the
generational information in his possession which permitted the paralegal to
complete the notice form with some information about the father’s ancestry up
to, and including, the four great-grandparents.
There is no evidence further information was available.
The record shows that the relevant
tribes were provided notice of the proceedings with all available data about
the minors’ ancestors. There was no
error.
DISPOSITION
The orders of the juvenile court are
affirmed.
BLEASE , Acting
P. J.
We concur:
HULL , J.
BUTZ ,
J.
name="_ftn1" title="">[1] Further undesignated statutory references are
to the ADDIN BA xc <@ost> xl 29 s
GTLETC000015 xpl 2 l "Welfare and Institutions Code" Welfare
and Institutions Code.
