In re C.N.

Filed 8/3/07 In re C.N. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sutter)

----

R. N. and L. C., father and mother of the minor C. N. (collectively appellants), appeal from the juvenile courts order terminating their parental rights. (Welf. & Inst. Code,^[1] 366.26.) Appellants claim the evidence does not support the juvenile courts finding that the minor was adoptable, and the Sutter County Welfare and Social Services Division (Human Services) failed to adequately comply with the notice provisions of the Indian Child Welfare Act (ICWA).^[2](25 U.S.C. 1901 et seq.) Agreeing only with the latter contention, we shall reverse the juvenile courts order and remand for compliance with the ICWA notice provisions.

FACTUAL AND PROCEDURAL BACKGROUND

The five-year-old minor was removed from the mothers custody in December 2004 due to allegations of neglect and inadequate living conditions. At the time, the father was in a drug treatment program and had not seen the minor since she was a year old.

Although appellants initially denied Indian heritage, the mother later claimed possible Cherokee or Iroquois heritage on her mothers (the minors maternal grandmothers) side of the family. A notice of involuntary child custody proceedings (form SOC 820) signed by the mother contained the following handwritten notations: mothers family; Cherokee; Iroquois; Mom[s] maiden name; Claekler or Cleckler; Fatimalee; Porterville CA; and possible [I]ndian heritage. The maternal grandmother, Carolyn C., died in 2002, and the maternal grandfather, T. C., told Human Services he was not aware of any Indian [h]eritage.

The notice of involuntary child custody proceedings mailed on January 13, 2005, listed the maternal grandmothers name as Carolyn Kleckler, AKA: C[.]. That notice was sent via certified mail to 12 tribes and the Bureau of Indian Affairs (BIA). Notice for the Tuscarora Nation of New York was sent to an old address. Nine tribes responded that the minor was not enrolled and/or eligible to enroll. Three tribes, including the Tuscarora Nation of New York and the BIA, did not respond; however, return receipts for those tribes and the BIA were filed with the juvenile court.

At the dispositional hearing on January 20, 2005, the juvenile court ordered appellants to participate in reunification services and set a six-month review hearing for July 5, 2005. Notice of the six-month review hearing was mailed to seven tribes on June 14, 2005, including the three tribes that did not respond to the January 13, 2005, notice. The notice of the six-month review hearing listed the maternal grandmothers name as Carolyn Kleckler, Carolyn C[.] No response or return receipt from any tribe was filed with the juvenile court.

At the six-month review hearing on July 5, 2005, the juvenile court found the minor was not eligible for enrollment in a [f]ederally [e]ligible Indian tribe.

At the 12-month review hearing on February 2, 2006, the juvenile court terminated reunification services and visitation as to both appellants and set a section 366.26 hearing for May 25, 2006.

The selection and implementation report for the section 366.26 hearing stated the minor had been in six different placements since being detained in December 2004, three of which disrupted due to the minors behaviors, which included: lying, difficulty with appropriate boundaries, attachment difficulties, sexual acting out . . ., defiance, anxiety, nightmares and hypervigilence. All of her behavioral issues seem[ed] to be directly related to a history of neglect by her biological mother, physical abuse, exposure to domestic violence, and drug use by the mother.

The minor was living in a certified foster home and was taking Zoloft to address anxiety, depressive moods, and protrusive memories of prior abuse, Adderall to address [attention deficit hyperactivity disorder], and Risperdal to address agitation and aggression. She had no medical or physical developmental problems, and despite her behavioral issues, was doing well academically. She was continuing to benefit from therapeutic services, and her prognosis was good if . . . placed in a stable foster/adoptive home. . . .

The California Department of Social Services, Adoptions Branch (Social Services) determined the minor was adoptable, and an adoption specialist was working diligently to find an adoptive home. Human Services requested the juvenile court terminate parental rights so that an adoptive placement could be made as soon as one was identified; however, Social Services recommended the court order a permanent plan of adoption, and without terminating parental rights, continue the matter for a period of 180 days . . . to allow the [minor] to process adoption with her therapist and locate an adoptive home willing to accept her behaviors. The section 366.26 hearing was ultimately continued to October 11, 2006.

A July 2006 addendum to the selection and implementation report explained that after the minor began taking psychotropic medication and ceased visitation with appellants, her mental health stabilized such that she was ready to be placed into a permanent adoptive home.

The minor was placed with a prospective adoptive family in June 2006. Although she had some difficulty adjusting, her situation began to stabilize after the prospective adoptive parents engage[d] in obtaining mental health resources to aid them in parenting the minor.

The social worker and adoption specialist assigned to the minors case both testified at the section 366.26 hearing in October 2006. The social worker stated the minor had been in her prospective adoptive placement for four months. The prospective adoptive parents were very committed to making the placement work, and the minors psychiatrist believed the minor was bonding with the prospective adoptive parents. The social worker described the minor as an absolute doll, . . . very precocious and loving, but acknowledged she had some problems. She wet her pants when things became too stressful, lied, and was very defiant at times. When asked to elaborate on the minors defiant behavior, the social worker explained the minor dawdled when getting ready for school and said she would do things, such as clean her room and brush her teeth, and then failed to do them. When the juvenile court observed, [t]hats normal behavior, the social worker agreed, but stated the minors defiance is more consistent than normal. When asked to elaborate on the minors lying, the social worker explained they were not really major things. For example, the minor told her prospective adoptive parents that she had defecated in the backyard, when she had not. The minors behavior improved after she was placed with the prospective adoptive parents. The sexualized behavior stopped, and the social worker had received only one call from the minors school. Overall, the minors behavior was a little worse than your average dependent child.

The adoption specialist testified the minor was the prospective adoptive parents first child, and they were learning to parent her. If the current placement did not succeed, she was sure she could find another one. There was a lot of interest in [the minor] when [Social Services was] looking for homes for her. Initially, there were five or six families interested in adopting the minor, and after the adoption specialist disclosed what [she] knew about [the minor] and working with her, there were still three or four families interested in adopting her. The minor had a lot of strengths, including her age, her intelligence, her sense of humor, and the fact [t]here [were] parents interested in adopting her. The minor was average or [s]lightly [more] difficult than the average dependent child to place in an adoptive home.

Sometime prior to August 16, 2006, the adoption specialist requested the University of California at Davis conduct a psychological evaluation of the minor. However, at the time of the section 366.26 hearing, the University of California at Davis was about three weeks out of getting it assigned and getting things started. The purpose of the evaluation was to look at [the minors] future needs and assess what . . . shes going to need.

At the section 366.26 hearing, the juvenile court adopted the social workers recommended findings and orders, terminating parental rights and selecting adoption as the permanent plan.

DISCUSSION

I

The Finding Of Adoptability Is Supported By Substantial Evidence

Relying primarily on the minors psychological and related behavioral issues, appellants contend the juvenile courts order terminating their parental rights must be reversed because the finding of adoptability is not supported by substantial evidence. Human Services and the minor argue the finding is supported by substantial evidence. We agree with Human Services and the minor.

At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. (In re Ronell A. (1995) 44 Cal.App.4th 1352, 1368, italics omitted.) In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; 366.26, subd. (c)(1).)

The issue of adoptability posed in a section 366.26 hearing focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, [t]he fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the [minor] are not likely to dissuade individuals from adopting the minor. (Id. at pp. 1649-1650.)

When the sufficiency of the evidence to support a finding is challenged on appeal, even where the standard of proof in the juvenile court is clear and convincing evidence, we must determine if there is any substantial evidence -- that is, evidence that is reasonable, credible, and of solid value -- to support the conclusion of the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924.) In making this determination, we resolve all conflicts in favor of the prevailing party. Issues of fact and credibility are questions for the trier of fact, and we do not reweigh the evidence when assessing its sufficiency. (In re S.C. (2006) 138 Cal.App.4th 396, 415.)

Here, the record reflects the minor was in good health, developmentally on track, intelligent, and performing well academically. Her mental health improved with medication and after visitation with appellants ceased, and her behavior improved after she was placed with the prospective adoptive family and both she and the family received services. While she continued to be defiant at times, her behavior was only a little worse than [the] average dependent child. Three or four families remained interested in adopting her even after the adoption specialist disclosed what she knew about the minor, and the adoption specialist was sure she could find another prospective adoptive family if the minors current placement did not work out. Based on this evidence, the juvenile court reasonably could find, as it did, that although the record suggests the minor may continue to present some challenges to her caregivers, she was likely to be adopted.

We reject appellants assertion that the juvenile courts finding of adoptability is not supported by substantial evidence because the yet to be conducted University of California at Davis psychological evaluation might come[] back with a negative or even questionable prognosis that could diminish the minors chances for adoption. This is pure speculation. We likewise reject appellants contention that the juvenile court abused its discretion by failing to continue the hearing until after the evaluation was conducted. Appellants fail to point to any evidence in the record that they made such a request in the juvenile court. In any event, the minors psychological and resultant behavioral issues were well-documented in the record, the section 366.26 hearing had already been continued nearly five months, from May 25 to October 11, 2006, and the psychological evaluation had not even been scheduled. Under these circumstances, the juvenile court acted well within its discretion in declining appellants request to continue the hearing, if in fact such a request was made.

II

Human Services Failed To Comply With The ICWA Notice Provisions

Appellants claim the juvenile courts order terminating parental rights and selecting adoption as the permanent plan must be reversed because Human Services: (1) provided inaccurate or incomplete information to the tribes and the BIA concerning the maternal grandmothers surname; (2) made an inadequate inquiry in determining whether the minor has Indian heritage; (3) failed to comply with the 10-day rule for ICWA notice; (4) mailed the notice for the Tuscarora Nation of New York to an incorrect address; (5) failed to follow-up when two of the tribes misspelled the minors name in their responses; (6) failed to verify that the persons who signed the postal receipts on behalf of the tribes that did not respond to the notice were, in fact, authorized to sign receipts on behalf of the ICWA representatives of the tribe; and (7) failed to file responses or return receipts with the juvenile court for the notice mailed on June 14, 2005.^[3] We agree, at least in part, with claims one, two, and four and shall reverse and remand to allow for additional inquiry and new notice for at least one, and possibly all, of the tribes. Appellants remaining claims either lack merit or constitute harmless error.

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. (25 U.S.C. 1901, 1902, 1903(l), 1911(c), 1912.) The juvenile court and Human Services 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. (Cal. Rules of Court, rule 5.664(d).)^[4] If, after the petition is filed, the court or Human Services 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 BIA if the tribal affiliation is not known. ( 224.2, subd. (a).) Unless the tribe has participated in or indicated no interest in the proceedings, failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Desiree F. (2000) 83 Cal.App.4th 460, 472.)

ICWA notice must include the following information, if known: the name of the child; the childs birth date and birthplace; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names of the childs mother, father, grandparents and great-grandparents or Indian custodians, including maiden, married and former names or aliases, as well as their birth dates, places of birth and death, tribal enrollment numbers, and current and former addresses; and a copy of the petition. ( 224.2, subd. (a)(5).)

Here, a reasonable interpretation of the handwritten notations on the form SOC 820 signed by the mother is that possible maiden names for the maternal grandmother include: Claeckler, Cleckler, and Fatimalee.^[5] The notices sent to the tribes, however, listed the maternal grandmothers maiden name as Kleckler. There is no explanation in the record as to why the name Kleckler was included in the notices mailed to the tribes and the BIA and the names contained on the form SOC 820 signed by the mother were not. On this record it cannot be inferred proper notice with all relevant, known, information was sent to all potentially applicable tribes. [O]ne of the primary purposes of giving notice to the tribe is to enable the tribe to determine whether the child involved in the proceedings is an Indian child. (In re Desiree F., supra,83 Cal.App.4th at p. 470.) Notice is meaningless if inaccurate or incomplete information is presented to the tribe. (In re D. T. (2003) 113 Cal.App.4th 1449, 1455.) Accordingly, we shall remand the matter to the juvenile court so that it may: (1) inquire into why all of the various names listed for the maternal grandmother on the form SOC 820 signed by the mother were not included in the notices mailed to the tribes and the BIA; and (2) direct new notices be sent if it determines that relevant information was omitted from the notices mailed to the tribes and the BIA.

Appellants also complain that Human Services failed to make an adequate inquiry into the minors Indian heritage by not asking the maternal grandfather about the maternal grandmother or her parents. Human Services responds that it did interview the maternal grandfather about the grandmothers possible Indian heritage. The record supports Human Services assertion that it asked the maternal grandfather about the maternal grandmothers Indian heritage, but it does not indicate whether Human Services asked him about any general information concerning the maternal grandmother or her parents, such as their names, birth dates and birthplaces, that would assist the tribes and the BIA. Human Services should have made such an inquiry. (In re D. T., supra, 113 Cal.App.4th at p. 1455; Cal. Rules of Court, rule 5.664(d).) In the absence of any indication that such an inquiry was made, the record does not establish diligent investigation by Human Services. Accordingly, we shall remand the matter to the juvenile court so that it may direct: (1) Human Services to ask the maternal grandfather if he has any additional relevant information about the maternal grandmother or her parents, if it has not already done so; and (2) new notices be sent if it determines that relevant information was omitted from the notices mailed to the tribes and the BIA.

Appellants also contend Human Services mailed the notices for the Tuscarora Nation of New York to an incorrect address. Human Services concedes that it mailed the notices for the Tuscarora Nation of New York to an old address, but argues the error was harmless because the notices were sent to an address formerly listed in the Federal Register, and the notice mailed on January 13, 2005, was signed for by Arnold Hewitt, whom Human Services claims is a Chief[] and member of the Coun[ci]l of Chiefs of the Tuscarora Nation of New York and [is] capable of handling the business of the tribe.

Section 224.2, subdivision (a)(2), requires service of notice to the tribal chairman unless the tribe has designated another agent for service. The current names and addresses of the designated agents for service of notice are contained in the Federal Register.

Here, at the time of service, the Tuscarora Nation of New York designated its agent for service as Supervisor, Community Health Worker, 2015 Mount Hope Road, Lewistown, NY 14092. (68 Fed.Reg. 68408, 68415 (Dec. 8, 2003).) But the ICWA notices were sent to ICWA Representative, 5616 Walmore Road, Lewiston, New York 14092, an address apparently obtained from a superseded list of designated tribal agents and addresses. (See 58 Fed.Reg. 16450, 16452 (Mar. 26, 1993).) This was error. While failure to mail ICWA notice to a correct address constitutes harmless error where the record contains . . . conclusive evidence that the [tribe] received actual notice of the proceedings (Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783-784), contrary to Human Services assertion, there is no such evidence in this case.

Although the record contains a signed return receipt for the misaddressed ICWA notice mailed on January 13, 2005, the record does not support Human Services assertion that the person who signed the return receipt, Arnold Hewitt, was authorized to act on behalf of the tribe at that time. Cusick v. Acting Eastern Area Director, Bureau of Indian Affairs (1997) 31 IBIA 255, cited by Human Services, is unavailing. There, the board affirmed the BIAs recognition of Chief Henry as the spokesman for the Tuscarora Council of Chiefs. (Id. at p. 255.) In doing so, it considered a 1996 letter from the BIAs field representative to Henry, which states in pertinent part: [BIA] will continue to recognize you, Chief Leo Henry, as the spokesman for the Tuscarora Council of Chiefs and will conduct business primarily with you and Chief Arnold Hewitt in times when you are unavailable. (Ibid.) At best, the decision suggests Hewitt was authorized to act on behalf of the tribe in 1996. It does not, however, establish that he was authorized to act on behalf of the tribe nearly a decade later, in 2005, when the notices of these proceedings were sent, and most certainly does not constitute conclusive evidence that the [tribe] received actual notice of the[se] proceedings. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 784.) Accordingly, we shall remand the matter to the juvenile court so that notice can be sent to the tribes current address.

Appellants next assert that the January 13, 2005, notice failed to comply with the 10-day rule. The ICWA provides that: No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by . . . the tribe . . . . (25 U.S.C. 1912(a); italics added.) Here, notice was first mailed to the tribes and the BIA on January 13, 2005, just seven days before the dispositional hearing on January 20, 2005. This was error. However, failure to comply with this time provision is not jurisdictional and is harmless where the minor is not a tribal member or eligible for membership, provided the notice was otherwise adequate. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1411-1413.) Here, 9 of the 12 tribes that received the notice responded that the minor was not enrolled and/or eligible to enroll. Thus, should the juvenile court determine on remand that the January 13, 2005, notice was otherwise adequate, Human Services failure to comply with the 10-day rule was harmless as to the nine tribes that responded. We reach the same conclusion with respect to the three tribes that did not respond to the January 13, 2005, notice but for a different reason.

At the time the January 2005 notice was sent, California Rules of Court, rule 1439(f)(6) stated: If, after a reasonable time following the sending of notice under this rule--but in no event less than 60 days--no determinative response to the notice is received, the court may determine that the act does not apply to the case unless further evidence of the applicability of the act is later received. Here, notice was mailed on January 13, 2005, and the juvenile court determined the minor was not eligible for enrollment in a [f]ederally [e]ligible Indian tribe on July 5, 2005 -- well beyond the 60 day period. Given the tribes failure to respond to the January 13, 2005 notice, and the courts subsequent determination that the ICWA does not apply, Human Services failure to comply with the 10-day rule is harmless, should the juvenile court determine the notice was otherwise adequate. Should the court determine the notice did not contain complete or accurate information, new notices will be required, in which case we presume Human Services will comply with the 10-day requirement and all other applicable rules in providing such notice.

Appellants also claim Human Services violated the ICWA by failing to file return receipts for the notice mailed in June 2005 for the three tribes that did not respond to the January 13, 2005 notice. Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter, . . . unless it is determined that the Indian Child Welfare Act . . . does not apply, and copies of . . . all return receipts and responses received, shall be filed with the court. ( 224.2, subds. (b), (c).)

Here, notice of the July 5, 2005, six-month review was sent on June 14, 2005. While a copy of the notice was filed with the juvenile court, responses and return receipts from the tribes were not. This was error. For the reasons previously stated, should the juvenile court determine the notice was otherwise adequate, the error was harmless given the juvenile courts determination on July 5, 2005, that the ICWA did not apply. Should the court determine the notice did not contain complete or accurate information, new notices will be required, in which case we presume Human Services will file the responses and return receipts with the juvenile court. (See 224.2, subd. (c).)

Appellants also fault Human Services for failing to follow-up when some of the tribes misspelled the minors name in their responses or to verify that the persons who signed the postal receipts on behalf of the tribes were authorized to sign receipts on behalf of the ICWA representatives of the tribe. Appellants cite no authority for imposing such duties on Human Services, nor are we aware of any. We conclude that Human Services fulfills its duty when it provides notice in accordance with the ICWA.

Finally, appellants contend [t]he dispositional order placing [the minor] in foster care, [and] all placement orders made thereafter . . . must be reversed because of Human Services failure to comply with the ICWA notice provisions. They further contend that a limited remand is not the correct procedure and urge this court to direct the juvenile court, following notice, [to] conduct a new section 366.26 hearing. We disagree with both contentions.

Aside from its notice provisions, the ICWA applies only to Indian children. (In re L. B. (2003) 110 Cal.App.4th 1420, 1427.) If upon remand a tribe determines that the minor is an Indian child, the remedy for failure to comply with the ICWA is a petition to invalidate prior orders. (25 U.S.C. 1914; see In re Desiree F., supra, 83 Cal.App.4th at pp. 475-476.) Until such time as the minor is determined to be an Indian child, it would be premature to vacate prior orders or, as appellants request, direct the juvenile court to conduct a new section 366.26 hearing. (In re Francisco W. (2006) 139 Cal.App.4th 695, 705-710.)

DISPOSITION

The order terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to: (1) inquire into whether accurate and complete information concerning the maternal grandmothers surname was provided to the tribes and the BIA; and (2) order Human Services to ask the maternal grandfather if he has any additional relevant information about the maternal grandmother or her parents, if Human Services has not already done so. If the juvenile court determines that incorrect or incomplete information was provided to all tribes and the BIA, it shall order Human Services to provide proper notice, including complying with sections 224 through 224.6. In any event, the juvenile court shall order Human Services to provide notice to the Tuscarora Nation of New York at its current address. If after proper and complete notice, the BIA or a tribe determines that the minor is an Indian child as defined by the ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of the ICWA. If, on the other hand, no response is received or the tribes and the BIA determine the minor is not an Indian child, all previous findings and orders shall be reinstated.

ROBIE , J.

We concur:

DAVIS, Acting P.J.

MORRISON , J.

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^[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Appellants join in the arguments advanced in one anothers briefs. (Cal. Rules of Court, rule 8.200(a)(5).)

^[3] The minor takes no position on the issue of the ICWA notice.

^[4] In 2005, when Human Services provided the ICWA notices discussed herein, former California Rules of Court, rule 1439 contained the governing rules. Certain Welfare and Institutions Code sections have now become a part of the ICWA notice framework, most notably section 224.2, and former California Rules of Court, rule 1439 has now been revised as California Rules of Court, rule 5.664. As relevant to this appeal, these new authorities are essentially the same in substance as former California Rules of Court, rule 1439.

^[5] C. appears to be the maternal grandmothers married name since it is the surname of both the maternal grandfather and the mother.