In re A.H.

Filed 8/8/07 In re A.H. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL from a judgment of the Superior Court of San Diego County, Michael Imhoff, Judge. Reversed and remanded with directions.

Tiffany H. appeals a judgment terminating her parental rights to her daughter, A.H. under Welfare and Institutions Code section 366.26.^[1] She contends the court's finding that A.was likely to be adopted is not supported by substantial evidence, the court erred when it denied her request for a short continuance to obtain developmental test results, and the court did not comply with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C.  1901 et seq.) We agree there was noncompliance with ICWA but otherwise find no error. Accordingly, we reverse and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND

A.H. was born in April 2005.^[2] Her mother, Tiffany H., then 18 years old, was a ward of the juvenile court. Tiffany had a history of childhood neglect, delinquency and substance abuse, including methamphetamine use. The juvenile court terminated jurisdiction in August because of Tiffany's age, transient status and lack of cooperation with services.

On September 29, 2005, Tiffany left five-month-old A.with an acquaintance. A friend of the acquaintance noticed A. had a fever and was coughing, and the acquaintance did not appear to know how to care for her. On October 1, the friend sought medical care for A. A. was diagnosed with pertussis, a bacterial infection that can lead to pneumonia, other serious complications and death. A. had not been immunized against pertussis.

The San Diego County Health and Human Services Agency (Agency) took A. into protective custody and filed a section 300 petition. On January 3, 2006, the court found that A. required the protection of the juvenile court, removed her from parental custody and ordered a plan of family reunification services.

In October 2005, Tiffany informed the Agency that A.'s grandfather was a member of the Cherokee tribe. The Agency sent notice to the Cherokee Nation of Oklahoma, Eastern Band of Cherokee Indians, United Keetoowah Band of Cherokee Indians and the Bureau of Indian Affairs (BIA). The notices contained the grandfather's name but did not list his address, telephone number or any information about his parentage. Cherokee Nation and Eastern Band responded they were unable to verify Indian heritage or membership based on the information provided. The BIA and United Keetowah Band did not respond. The court subsequently found ICWA did not apply.

Tiffany refused to participate in drug treatment and testing services. She did not complete a court-ordered psychological evaluation and did not participate in counseling and parenting education. Tiffany's visitation and contact with A. was minimal. She saw A. once between April and September 2006. In August, Tiffany was arrested and incarcerated on charges of possession of a stolen vehicle, taking a vehicle without owner's consent, receiving stolen property, possession of a controlled substance (methamphetamine) and drug paraphernalia.

At the six-month review hearing in September 2006, the court terminated reunification services and set a section 366.26 hearing to select and implement a permanency plan for A. The Agency reported A. was developmentally on target, and there were no concerns about her health or behavior. The Agency arranged for A. to have a developmental evaluation on March 5, 2007. The social worker identified 51 available prospective adoptive families willing to accept a child with A.'s characteristics.

On March 6, 2007, at the beginning of the section 366.26 hearing, Tiffany's attorney requested a continuance to review the results of the developmental evaluation completed the day earlier. The court denied the motion for continuance. After receiving the Agency's reports in evidence, the court found by clear and convincing evidence A. was likely to be adopted. The court found that adoption was in A.'s best interests and terminated parental rights.

DISCUSSION

I

The Court Did Not Abuse Its Discretion When It Denied Mother's Motion For A Continuance Of The Section 366.26 Hearing

Tiffany contends the court abused its discretion when it denied her motion to continue the section 366.26 hearing. She asserts there was good cause to continue the hearing because the results of A.'s developmental evaluation were pending, the foster mother did not want to adopt A. and the Agency had not yet identified a prospective adoptive family willing to adopt the child.

In dependency cases, "[t]he court must not continue a hearing beyond the time set by statute unless the court determines the continuance is not contrary to the interest of the child. In considering the child's interest, the court must give substantial weight to a child's needs for stability and prompt resolution of custody status, and the damage of prolonged temporary placements." (Rule 5.550((a)(1).) Continuances may be granted only on a showing of good cause, and only for the time shown to be necessary. ( 352, subd. (a); rule 5.550(a)(2).) Courts have interpreted this policy to expressly discourage continuances. (See, e.g., In re Emily L. (1989) 212 Cal.App.3d 734, 743.)

We review a court's exercise of its discretion to grant or deny a motion for a continuance for abuse of discretion. (In re Karla C. (2003) 113 Cal.App.4th 166, 179-180; see In re Angela R. (1989) 212 Cal.App.3d 257, 265-266.)

In denying Tiffany's request for a continuance, the court noted there were no indications that A.'s social worker, foster mother or pediatrician had any concerns about her appropriate development. The court's observations are fully supported by the record. A.'s development was age-appropriate. At 22 months, she was walking, talking, dancing, jumping and playing games.

The court could reasonably determine Tiffany did not show good cause for a continuance and A.'s best interest was served by a prompt resolution of her permanency status. (Rule 5.550(a)(1).) The court acted within its discretion when it declined to postpone the proceedings. ( 352, subd. (a); rule 5.550(a)(2); In re Emily L., supra, 212 Cal.App.3d at p. 743.)

Further, assuming arguendo the denial of the motion for a continuance was an abuse of discretion, Tiffany cannot show that she was prejudiced. A judgment may not be reversed on appeal unless the error caused a "miscarriage of justice." (Cal. Const., art. VI,  13.) The issues before the court in a section 366.26 hearing are limited to whether the child is adoptable and whether any statutory exceptions apply to preclude termination of parental rights. ( 366.26, subd. (c).) Tiffany does not describe how the outcome of the permanency plan hearing would have been different had it been postponed for two weeks, as requested. (People v. Watson (1956) 46 Cal.2d 818, 836.) Error, if any, is harmless.

II

Substantial Evidence Supports the Court's Finding of Adoptability

Tiffany contends the court's finding A. was likely to be adopted (adoptability finding) is not supported by substantial evidence. She asserts there were concerns about the effects of pertussis on A.'s developmental progress and the Agency did not complete the assessment required under section 366.21, subdivision (i). Tiffany maintains the court did not have complete information about A. because a developmental evaluation was pending, and therefore the court's adoptability finding was not supported by substantial evidence.

The Agency contends Tiffany forfeited the issue of adoptability on appeal by not raising the issue in the trial court. On the merits, the Agency asserts the court's adoptability finding is supported by substantial evidence.

We reject the Agency's assertion Tiffany forfeited the issue of adoptability on appeal. Generally, issues not raised in the trial court cannot be raised on appeal. The assertion a judgment is not supported by substantial evidence is an " 'obvious exception to the rule.' " (In re Javier G. (2006) 137 Cal.App.4th 453, 464 quoting Tahoe National Bank v. Phillips (1971) 4 Cal.3d 11, 23 fn. 17.) "In other words, when the merits of a case are contested, a parent is not required to object to the agency's failure to carry its burden of proof. (Citations.)" (In re Javier G., supra, 137 Cal.App.4th at p. 464)

Before the juvenile court can terminate parental rights, the Agency is required to show by clear and convincing evidence the children were likely to be adopted. ( 366.26, subd. (c)(1); see also  366.26, subd. (c)(3); In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.) Here, Tiffany contested the Agency's recommendation to terminate parental rights. ( 366.26, subd. (c)(1).) Thus the issue of adoptability is not forfeited on appeal. (In re Gregory A., supra, 126 Cal.App.4th at p. 1561.) We now discuss whether the adoptability finding is supported by substantial evidence.

"Adoption, where possible, is the permanent plan preferred by the Legislature." (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) Unless termination of parental rights would cause serious detriment to a child under one or more specific statutory exceptions, the court must terminate parental rights if it finds by clear and convincing evidence the child is likely to be adopted. ( 366.26, subd. (c)(1).)

Whenever the court orders a section 366.26 hearing, it must direct the Agency to prepare an assessment report. The Agency is required to include "[a]n evaluation of the child's medical, developmental, scholastic, mental, and emotional status." ( 366.21, subd. (i); see also  366.22, subd. (b).) The question of adoptability usually focuses on whether the child's age, physical condition, and emotional health make it difficult to find a person willing to adopt that child. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Tiffany contends the Agency did not submit "a full, complete and accurate report regarding the child's current developmental status in violation of section 366.21, subdivision (i) " to the court. She also argues the Agency's inability to identify an adoptive family for 22-month-old A. in the five months preceding the hearing indicates the court's adoptability finding is not supported by substantial evidence.

On review, we determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re Gregory A., supra, 126 Cal.App.4th at p. 1562; see also In re Zeth S. (2003) 31 Cal.4th 396, 406.) We give the court's finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

The record shows the Agency conducted an evaluation of A.'s medical, developmental, educational, and mental and emotional status and reported it to the court as required by section 366.21, subdivision (i). In reports submitted to the court in January and March 2007, the social worker reported that A. was a "very adoptable child." The Agency scheduled a developmental evaluation for A. in order to completely inform any prospective adoptive family of her status. The court could reasonably infer the Agency scheduled a developmental evaluation to obtain as much information as possible about A. for any prospective adoptive family, not because the social worker needed additional information to assess her adoptability.

In addition, we are not persuaded by Tiffany's argument about the effect of pertussis on A.'s development. Although symptoms of pertussis may linger for four to six months, by December 2005 there were no major concerns about A.'s health. A. had a mild respiratory infection in December 2005, an ear infection in November 2006, and a cold and stomach flu in approximately February 2007. The record shows A. was healthy, developmentally on target, and her behavior did not indicate she had emotional adjustment problems.

A.'s health and developmental status is not comparable to the status of the children in the cases on which Tiffany relies. (In re Brian P. (2002) 99 Cal.App.4th 616 [child had developmental delays and could not speak at age two and one-half]; In re Tamneisha S. (1997) 58 Cal.App.4th 798 [four-year old child had severe asthma and mild mental and motor delays, and the Agency was unable to locate an adoptive home for her after searching for more than 10 months]; In re Jayson T. (2002) 97 Cal.App.4th 75 [prospective adoptive placement of two siblings, ages 7 and 9 years old, failed because one sibling showed signs of reactive attachment disorder].) In contrast to the children in those cases, A. was happy, healthy and energetic, and no concerns about her developmental status are noted in the record. Although the foster mother was unable to adopt A. because of the number of children she had already adopted, she reported A. was "a smart kid that any family would enjoy [having]."

"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." ( 366.26, subd. (c)(1); In re Brian P., supra, 99 Cal.App.4th at p. 624.) Here, the record contains convincing evidence of the likelihood A. will be adopted within a reasonable time. The social worker identified 51 approved prospective adoptive families willing to adopt a child of A.'s age, health, ethnicity, sociability, personality and development. Three homes were under serious consideration. The social worker anticipated presenting A.'s case to a prospective adoptive family within a week or two of the section 366.26 hearing, and hoped to complete A.'s adoptive placement by May 2007.

We conclude there is substantial evidence to support the court's finding, by clear and convincing evidence, A. was likely to be adopted within a reasonable time. ( 366.26, subd. (c)(1); In re Brian P., supra, 99 Cal.App.4th at p. 624.) There is no error.

III

ICWA Notice Was Inadequate

Tiffany contends the Agency did not properly notice the BIA and Cherokee of her Indian heritage. She points out that information about A.'s Indian heritage through her grandfather was readily available, and the Agency did not obtain sufficient information about the grandfather and his lineage to constitute meaningful notice. (25 U.S.C.  1912, subd. (a).)

Notice is a "key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its right under the Act irrespective of the position of the parents, Indian custodian or state agencies." (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) A tribe's right to notice cannot be waived by any act or omission of the parent. (In re Suzanna L. (2002) 104 Cal.App.4th  223, 231-232; In re Kahlen W., supra, 233 Cal.App.3d at pp. 1421-1422, 1425.) If inadequate or insufficient information is provided to the tribes, notice is meaningless. (In re S.M. (2004) 118 Cal.App.4th 1108, 1116.)

The Agency concedes the notices sent to the BIA and Cherokee contained insufficient information and the matter should be remanded for the limited purpose of complying with the notice provisions of ICWA. (In re Francisco W. (2006) 139 Cal.App.4th 695; In re Terrance B. (2006) 144 Cal.App.4th 965) Minor's counsel concurs with the Agency's position. In view of the parties' concessions, we grant the relief requested.

DISPOSITION

The judgment terminating parental rights is reversed. The matter is remanded to the juvenile court with directions that it requires the Agency to provide proper notice to any prospective tribes and the BIA, and file with the court the notices, return receipts, and any responses; and hold a new permanency hearing under section 366.26.

If, at the permanency plan hearing, the court determines ICWA notice was proper and no Indian tribe seeks to intervene or otherwise indicates the child is an Indian child as defined by ICWA, the court shall reinstate its findings and orders terminating parental rights. If, on the other hand, an Indian tribe determines that the child is an Indian child under ICWA, the court shall conduct the jurisdiction, disposition, and all subsequent hearings in accordance with ICWA and applicable state law.

BENKE, Acting P. J.

WE CONCUR:

HALLER, J.

O'ROURKE, J.

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^[1] Statutory references are to the Welfare and Institutions Code unless otherwise specified.

^[2] The identity of A.'s biological father was not determined.