In re H.R.

Filed 3/16/07 In re H.R. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEALS from a judgment of the Superior Court of San Diego County, Peter E. Riddle, Judge. Affirmed.

The parents of dependent minors H. R. and Audrey R. appeal the juvenile court's judgment terminating their parental rights under Welfare and Institutions Code section 366.26.^[1] Julia R. is H. and Audrey's mother, Gregory R. is H.'s father, and Salvador R. is Audrey's father. Julia and Salvador contend the court erred by not ensuring compliance with the notice provisions of the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.) before terminating parental rights. Gregory contends: (1) the court erred by terminating his parental rights without a showing of parental unfitness; (2) he received insufficient notice of the court's intention to conduct a hearing on his parental fitness; and (3) the evidence is insufficient to support the court's finding H. is adoptable. We affirm the judgment as to all three parents.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2003, four-year-old H. and 20-month-old Audrey (together the minors) became dependents of the juvenile court under section 300, subdivisions (a) and (b) based on findings Julia abused drugs and there was domestic violence between Julia and her live-in boyfriend Gary G. The court placed the minors in out-of-home care and ordered services for Julia.

Julia claimed she had Cherokee Indian heritage. Agency sent notice under ICWA to the Bureau of Indian Affairs (BIA) and several Cherokee tribes. The Cherokee Center for Family Services responded that the minors were not registered or eligible to be registered as members of the tribe. The court found ICWA did not apply.

Gregory claimed to be H.'s father. At Gregory's request, the court appointed counsel for him, found Gregory was H.'s alleged father and ordered him to submit to paternity testing. The court later found Gregory was H.'s biological father and granted him presumed father status. The court also found Salvador was Audrey's biological father.

At a contested six-month review hearing in April 2004, the court found Julia had not made substantive progress with her case plan. The court continued the minors as dependents, terminated reunification services and set a section 366.26 selection and implementation hearing.

In an assessment report, the social worker recommended the court terminate parental rights and order adoption as the minors' permanent plans. The social worker believed the minors were adoptable because they were young, outgoing, healthy and developmentally on target. Agency had not identified an adoptive home for the minors but there were 19 approved adoptive families willing to adopt a sibling set like H. and Audrey.

Gregory, who lived in New York, did not maintain regular contact with the social worker. Gregory had not seen H. for three years and had not established a relationship with her. Telephone calls to H. from Gregory confused her because she considered Julia's boyfriend Gary to be her father.

Agency made numerous attempts to serve Gregory with notice of the selection and implementation hearing. Although Gregory was aware of these attempts, he had not made himself available for service.^[2]

In a May 2005 addendum report, the social worker continued to recommend adoption as the minors' permanent plans. An adoptive home had been identified for the minors, and if this family could not adopt the minors, there were six other approved adoptive families willing to adopt a sibling set like H. and Audrey. The minors did not have a relationship with their parents. Gregory made several telephone calls to the social worker, claiming he was ready to have custody of H. and Audrey. The social worker was concerned about Gregory's belated interest in the minors and questioned his commitment to them.

Gregory filed a section 388 modification petition seeking placement of H. with him, or alternatively, additional reunification services. After a hearing on March 3, 2006, at which the social worker and Julia testified, the court denied Gregory's modification petition, finding Gregory had not shown his circumstances had changed or that granting the petition was in H.'s best interests.^[3]

On March 9, 2006, Agency asked the court to make a finding, based on the evidence presented at the section 388 hearing, that it would be detrimental to H. to place her with Gregory. Counsel for Gregory objected on the ground Gregory received no notice of Agency's intention to request a detriment finding. The court made no detriment finding, but instead agreed Agency could raise the issue at the selection and implementation hearing.

At a contested selection and implementation hearing on May 30, 2006, Agency renewed its request for a detriment finding as to Gregory. Over Gregory's counsel's objection, the court found, by clear and convincing evidence, it would be detrimental to H. to place her with Gregory.

Agency asked the court to set aside its previous finding, made three years earlier, that ICWA did not apply to the minors. Agency explained it had not previously provided the court with documentation of the return receipts of its original ICWA notice attempts. Consequently, Agency sent the BIA and Cherokee tribes a second notice using the new form JV-135 and provided the court with evidence of proper service. Because 60 days had not elapsed since the BIA and Cherokee tribes received notice in accordance with California Rules of Court, rule 5.664(f)(6), Agency suggested the court find proper notice had been given under ICWA, but defer its finding as to ICWA's applicability. The court agreed with this approach, set aside its previous finding ICWA did not apply, found proper notice under ICWA had been given and set a hearing for July 13, 2006, to address ICWA.

Social worker Nicole Campus testified the minors were adoptable because they were physically and mentally healthy, performing well academically and developing appropriately. The minors' challenging behaviors, including those attributable to attention deficit hyperactivity disorder (ADHD), did not make them unadoptable. They had bonded with their prospective adoptive parents, who remained committed to adopting them. If the adoptive placement was unsuccessful, the minors were still adoptable, although they would regress. However, because the minors were bright and able to bond with others, any regression could be addressed in therapy. Agency did not intend to separate H. and Audrey, and there were five families willing to adopt a sibling pair with their characteristics.

In Campus's opinion, the minors and their parents did not have a beneficial parent-child relationship that would outweigh the benefits of adoption. H., now almost seven years old, last saw Gregory when she was two years old. Audrey, now four years old, last saw Salvador when she was two weeks old and did not remember him.

After considering the evidence and hearing argument of counsel, the court found the minors were likely to be adopted and none of the circumstances of section 366.26, subdivision (c)(1) applied to preclude terminating parental rights. The court terminated parental rights and referred the minors for adoptive placement.

At a special hearing on July 13, 2006, the court received into evidence Agency's addendum report showing 60 days had passed since notices were sent to the BIA and Cherokee tribes. Agency received four letters from two tribes stating the minors were not considered Indian children. Proper forms, including certified mail receipts and signed return receipts, had been filed with the court.^[4] Based on this evidence, the court found ICWA did not apply.

DISCUSSION

Julia's and Salvador's Appeals

Julia and Salvador contend the court erred by terminating parental rights without first determining whether the minors were Indian children under ICWA. They assert that because there was no finding as to ICWA's applicability, the court was required to conduct the selection and implementation hearing as if the minors were Indian children and apply ICWA principles in evaluating whether termination of parental rights was in the minors' best interests.

Agency responds that Julia and Salvador's claim of ICWA error is moot because the juvenile court, at the July 13 hearing, determined ICWA did not apply.

An appeal becomes moot and may be dismissed when, through no fault of the respondent, the occurrence of an event renders it impossible for the appellate court to grant the appellant effective relief. (In re Jessica K. (2000) 79 Cal.App.4th 1313, 1315-1316.) We decide on a case-by-case basis whether subsequent events in a juvenile dependency matter make a case moot and whether our decision would affect the outcome in a subsequent proceeding. (In re Dylan T. (1998) 65 Cal.App.4th 765, 769.)

Here, no effective relief can be afforded Julia or Salvador because the juvenile court has determined the minors are not Indian children as defined by ICWA. Thus, reversal of the judgment terminating parental rights for the sole purpose of conducting a new hearing based on the minors' non-Indian status would be futile. (In re Jessica K., supra, 79 Cal.App.4th at p. 1315; In re Merrick V. (2004) 122 Cal.App.4th 235, 247, fn. 3 [augmented record on appeal showed ICWA notice compliance, rendering appellant's challenge moot].) Moreover, because the issue presented will not affect the outcome of this case in a subsequent proceeding and is not of broad public interest likely to recur, we decline to exercise our inherent discretion to resolve it. (In re Christina A. (2001) 91 Cal.App.4th 1153, 1158-1159; In re Dylan T., supra, 65 Cal.App.4th at p. 769.)

Gregory's Appeal

I

Gregory challenges the sufficiency of the evidence to support the court's finding it would be detrimental to place H. with him. He contends the court violated his due process rights by terminating his parental rights without clear and convincing evidence of his "parental unfitness."^[5]

A

We review the court's judgment or order for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) If, on the entire record, there is substantial evidence to support the findings of the juvenile court, we uphold those findings. We do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence or evaluate the weight of the evidence. Instead, we draw all reasonable inferences in support of the findings, consider the record favorably to the juvenile court's order and affirm the order even if substantial evidence supports a contrary conclusion. (In re Dakota H. (2005) 132 Cal.App.4th 212, 228.) The parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.)

B

Gregory left H. in February 2001 when she was 15 months old, and had no contact with her until March 2005. Gregory knew H. was in protective custody as early as July 2003, and did not contact the social worker until October 2004. Although Gregory claimed he wanted custody of H. and knew he needed to establish a relationship with her, he stopped communicating with the social worker until April 2005 and made no attempts to visit H. during that time. Gregory was unaware of H.'s special needs and did not know what kind of care she required.

Further, H. had not seen Gregory in nearly five years. Telephone calls from Gregory confused H. because she considered Julia's boyfriend Gary to be her father. H. did not mention Gregory in therapy, and H.'s therapist believed she would regress in her ability to bond with her caregivers if she had contact with her biological family.

Considering Gregory's inaction throughout the proceedings, his lack of motivation to resume and develop a parental relationship with H., his likely inability to follow through with services for her, and H.'s need to attach to her caregivers, substantial evidence supports the court's finding, by clear and convincing evidence, that awarding custody of H. to Gregory would be detrimental to her. Thus, Gregory's due process rights were not violated by the termination of his parental rights. (Cf. In re Gladys L. (2006) 141 Cal.App.4th 845, 848 [due process prohibits termination of parental rights without finding of detriment].)

II

Gregory contends his due process rights were violated because he did not receive sufficient notice of Agency's intention to raise the issue of detriment at the contested selection and implementation hearing. He asks us to reverse all findings and orders and remand the matter for a new hearing on the issue of detriment.

Following the section 388 modification hearing, Agency requested the court find it would be detrimental to H. to place her with Gregory. Gregory's counsel objected based on lack of notice. The court declined to make a detriment finding and agreed Agency could raise the issue at the selection and implementation hearing. Gregory did not object to this procedure, and did not claim he was entitled to written notice.

Agency renewed its request for a detriment finding at the selection and implementation hearing. Gregory's counsel objected, claiming there had been no prior notice the issue would be "detriment" and further, the evidence adduced at the modification hearing was "best interests," not "detriment." Gregory's counsel did not request a hearing on detriment, but instead argued the evidence did not show it would be detrimental to H. to place her with Gregory. The court disagreed, finding the evidence showed it would be detrimental for H. to be placed with Gregory.

Due process requires notice and an opportunity to be heard. (In re Joshua M. (1998) 66 Cal.App.4th 458, 471; In re DeJohn B. (2000) 84 Cal.App.4th 100, 106.) Although Agency did not send Gregory written notice, Gregory and his counsel had actual notice Agency would be requesting a detriment finding at the selection and implementation hearing, and counsel argued the merits of why it was not detrimental to have H. placed with Gregory. No due process violation occurred.

III

Gregory challenges the sufficiency of the evidence to support the court's finding H. was likely to be adopted if parental rights were terminated. He asserts H.'s severe ADHD, attachment disorder and behavior problems make her unadoptable.

A

The court can terminate parental rights only if it determines by clear and convincing evidence the minor is likely to be adopted. ( 366. 26, subd. (c)(1).) The statute requires clear and convincing evidence of the likelihood adoption will be realized within a reasonable time. (In re Zeth S. (2003) 31 Cal.4th 396, 406; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1065.) In determining adoptability, the focus is on whether a child's age, physical condition and emotional state will create difficulty in locating a family willing to adopt. ( 366.22, subd. (b)(3); In re David H. (1995) 33 Cal.App.4th 368, 379.) "Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor's age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, 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." (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) We review the court's finding of adoptability for substantial evidence. (In re Josue G. (2003) 106 Cal.App.4th 725, 732; In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

B

The evidence showed H. is generally adoptable because she is young, intelligent, outgoing, healthy and developing appropriately. The social worker described her as an adorable little girl whose smile lit up a room. In the social worker's opinion, H.'s challenging behaviors, including severe ADHD, did not make her unadoptable. H. was attending therapy and participating in extracurricular activities to address her behavior problems, and her ADHD was being successfully controlled by medication. Although the absence of a primary caregiver for many years caused H. to have some attachment issues, she was beginning to trust her prospective adoptive parents and had bonded with them with the help of attachment therapy.

At the time of the selection and implementation hearing, H.'s prospective adoptive parents remained committed to adopting H. and Audrey.^[6] Even if H.'s current adoptive placement were not successful, H. was still adoptable. There were four or five approved families willing to adopt a sibling pair with the characteristics of H. and Audrey, and the social worker was "very confident" the minors could be successfully placed in another adoptive home. Evidence of "approved families willing to adopt a child of [this] 'age, physical condition, and emotional state' " is relevant to evaluating the likelihood of the child's adoption. (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205; cf. In re Asia L. (2003) 107 Cal.App.4th 498, 512 [sibling set of three not adoptable because they had emotional and psychological problems and there were no approved families willing to adopt them].) Where, as here, evidence of a minor's adoptability is not based solely on the existence of prospective adoptive parents willing to adopt the minor, the prospective adoptive parents' suitability to adopt is irrelevant to the issue of whether the minor is likely to be adopted. (In re Sarah M., supra, 22 Cal.App.4th at p. 1651.) Substantial evidence supports the court's finding H. was adoptable.

DISPOSITION

The judgment is affirmed.

McDONALD, J.

WE CONCUR:

HALLER, Acting P. J.

AARON, J.

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

^[2] The court granted several continuances to allow Agency more time to locate Gregory and to identify an adoptive home for the minors.

^[3] Gregory did not appeal the court's order denying his section 388 modification petition. In an unpublished opinion, we dismissed Julia's appeal purporting to raise this issue, holding Julia had no standing to do so. (In re H. R. (Jan. 11, 2007, D048446) [nonpub. opn.].)

^[4] We grant Agency's December 11, 2006 request to augment the record on appeal with the addendum report and the court's minute order dated July 13, 2006.

^[5] California's dependency scheme no longer uses the term "parental unfitness," but instead requires the court make a finding that awarding custody of a dependent child to a parent would be detrimental to the child. (In re Cody W. (1994) 31 Cal.App.4th 221, 225-226; In re Dakota H., supra, 132 Cal.App.4th at p. 224, fn. 3.) The Supreme Court has clarified that a finding of detriment is "the equivalent of a finding of unfitness" as to the child involved. (In re Jasmon O. (1994) 8 Cal.4th 398, 423.)

^[6] Minor's counsel filed two motions on December 29, 2006, and March 12, 2007, to augment the record with postjudgment evidence, and Agency's counsel filed one motion on March 8, 2007, to augment the record with postjudgment evidence. All three motions relate to the issue of adoptability. Because we conclude substantial evidence supports the court's finding the minors are generally adoptable, this postjudgment evidence has not been considered in reaching our decision. Accordingly, we deny all three motions.