Filed 10/23/17 In re K.B. CA3

NOT TO BE PUBLISHED

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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Appellant K.B. III, father of minor K.B., appeals from the juvenile court’s orders terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)[1] He contends the juvenile court erred in finding the minor adoptable because an adoptive home study had not been completed for the foster parents seeking to adopt the minor. He also contends the Sacramento County Department of Health and Human Services (Department) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) by failing to notify the Round Valley tribes of the dependency proceedings. We agree the latter contention and shall conditionally reverse the orders terminating parental rights and remand for compliance with the ICWA.

FACTUAL AND PROCEDURAL BACKGROUND

The minor was detained and was placed in his current placement on November 5, 2015, shortly after his discharge from the neonatal intensive care unit. A section 300 petition was filed alleging that mother (who was also a minor) has an untreated substance abuse problem and father has an anger management problem resulting in domestic violence. Father reported Cherokee and Choctaw heritage. Mother subsequently reported Blackfeet heritage.

The Department’s ICWA paralegal spoke with mother and the maternal great-grandmother, both of whom reported Blackfeet heritage and provided family heritage information. Mother also reportedly had Indian heritage through her adoptive paternal grandmother. The paralegal also spoke with father’s paternal grandmother, who claimed Cherokee and Choctaw heritage and provided family heritage information. The paralegal had a family tree containing relevant ICWA and family information. An ICWA-030 form containing the family heritage information was sent to the Bureau of Indian Affairs (BIA), and the Cherokee, Choctaw, and Blackfeet tribes. The form also included information that indicated that the maternal great-grandmother and two maternal aunts (not mentioned elsewhere on the form) had very recently (2015) lived on the Round Valley reservation in Covelo. The ICWA-030 form was not, however, sent to the Round Valley tribes.

The juvenile court found that the Department complied with notice pursuant to ICWA. Responses had been received by the noticed tribes indicated the minor was not an Indian child. The court found that there was no reason to believe that the minor was an Indian child and that no further ICWA notice was necessary.

Mother and father failed to reunify with the minor. At the time of the November 15, 2016 section 366.26 hearing, father was incarcerated and mother’s whereabouts were unknown. The minor was doing well in his placement. He had been diagnosed at birth with neonatal anemia, a cleft lip and palate, and mild dysmorphic features, mild. There were also some other deformities. By the time of the section 366.26 hearing, he was described as developing well for his diagnosis, crawling and babbling and attempting to pull himself up, but continuing to struggle with eating and weighing only 18 pounds at the age of 12 months. He was still on formula and soft baby food. He would be having surgery for his cleft palate, after which he would need to be taught how to drink out of a cup and eat solid foods. The cleft palate had impacted his teeth and bone structure, so he did not have teeth on the upper right quadrant. In addition, an MRI had been recommended to explore possible cranial deformities that could contribute to his developmental delays.

The current foster parents, previously designated de facto parents, had been caring for the minor for over a year and wanted to adopt him. They were committed to ensuring that his health care and other needs continue to be met. The foster father is a stay-at-home parent and able to provide full-time care for the minor. The foster parents had raised two children to adulthood and desired to expand their family through adoption. An adoption home study had been ordered and there were no known barriers to approval. The social workers opined that the minor “is a specifically adoptable child due to his medical history and continued need for extensive medical care” and recommended termination of parental rights.

The juvenile court found it was likely the minor would be adopted within a reasonable time and terminated parental rights.

DISCUSSION

I

Adoptability

Father disputes the juvenile court’s finding that the minor was specifically adoptable. He argues such a finding was premature since the adoptive home study had not yet been completed. We find the record adequately supports the juvenile court’s findings.

A. The Law

“A finding of adoptability requires ‘clear and convincing evidence of the likelihood that adoption will be realized within a reasonable time.’ (In re Zeth S. [2003] 31 Cal.4th [396,] 406.)” (In re Valerie W. (2008) 162 Cal.App.4th 1, 13.) Generally, “[t]he issue of adoptability posed in a section 366.26 hearing focuses on the minor, ‘e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor.’ (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, ‘in some cases a minor who ordinarily might be considered unadoptable due to age, poor physical health, physical disability, or emotional instability is nonetheless likely to be adopted because a prospective adoptive family has been identified as willing to adopt the child.’ (Id. at p. 1650.)” (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1408.) In such cases, where the finding of adoptability is based on the existence of a prospective adoptive parent, “an inquiry may be made into whether there is any legal impediment to adoption by that parent.” (In re Sarah M., at p. 1650.)

We review the court’s finding of adoptability under the substantial evidence standard. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.) “We give the court’s adoptability finding the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of the judgment. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.)” (In re Valerie W., supra, 162 Cal.App.4th at p. 13.)

B. Specific Adoptability[2]

Although father disputes the absence of a completed home study, a completed adoptive home study is not a statutory prerequisite for termination of parental rights. (§ 366.26, subd. (c)(1).) Instead, it is required only after a minor is freed for adoption and an adoption petition is filed. (Fam. Code, § 8715, subd. (b).)

In instances where the likelihood of adoption is based solely on the existence of a prospective adoptive parent who is willing to adopt the minor, an inquiry may be made into whether there is any “legal impediment” to adoption. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650.) The legal impediments to adoption are found in Family Code sections 8601, 8602, and 8603, and provide that a prospective adoptive parent must be at least 10 years older than a child unless certain exceptions apply, a child older than 12 must consent to adoption, and a prospective adoptive parent not lawfully separated from a spouse must obtain consent from the spouse. (In re Sarah M., at p. 1650.)

“[A]s a general rule, the suitability of the prospective adoptive family does not constitute a legal impediment to adoption and is irrelevant to the issue of whether a child is likely to be adopted.” (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) However, the statutory scheme requires a “preliminary assessment” (§ 366.21, subd. (i)(1)(D)) of the prospective adoptive parent and “[a]n analysis of the likelihood” that the minor would be adopted (§ 366.21, subd. (i)(1)(G)) when the court orders a hearing pursuant to section 366.26 (§ 366.21, subd. (i)).

Here, the minor had been placed in the foster home for a considerable period of time when the section 366.26 hearing occurred. He was bonded to the foster parents, who had demonstrated they were able to meet his needs and wanted to adopt him. As an approved foster home, it had undoubtedly already been assessed and evaluated. Thus, the preliminary assessment required by statute, such as screening criminal records and for prior referrals for child abuse or neglect, as well as an assessment of their ability to meet the minor’s needs, had already occurred. (§ 366.22, subd. (c)(1)(D).)

No legal impediment to adoption is presented on the record. Thus, the juvenile court’s finding that the minor is adoptable is supported by the evidence.

II

ICWA Compliance

Father also contends the Department failed to comply with ICWA by failing to notify the Round Valley tribes of the dependency proceedings. We agree that because the form in the Department’s possession included information that the minor’s family members had recently lived on a tribal reservation, the notice requirement was triggered as to that tribe.

When the juvenile court knows or has reason to know that a child involved in a dependency proceeding is an Indian child, the ICWA requires that notice of the proceedings be given to any federally recognized Indian tribe of which the child might be a member or eligible for membership. (25 U.S.C. §§ 1903(8), 1912(a); In re Robert A. (2007) 147 Cal.App.4th 982, 989.) A mere suggestion of Indian ancestry is sufficient to trigger the notice requirement. (In re Robert A., at p. 989.) Notice requirements are construed strictly. (Ibid.)

The circumstances that may provide reason to know the child is an Indian child include, but are not limited to, the following: (1) A person having an interest in the child, including the child, an officer of the court, a tribe, an Indian organization, a public or private agency, or a member of the child’s extended family provides information suggesting the child is a member of a tribe or eligible for membership in a tribe or one or more of the child’s biological parents, grandparents, or great-grandparents are or were a member of a tribe; (2) The residence or domicile of the child, the child’s parents, or Indian custodian is in a predominantly Indian community; and (3) The child or the child’s family has received services or benefits from a tribe or services that are available to Indians from tribes or the federal government, such as the Indian Health Service. (§ 224.3, subd. (b).) “Notice shall be sent to all tribes of which the child may be a member or eligible for membership” until such time as the child’s tribe has been determined. (§ 224.2, subd. (a)(3).)

Here, initially, the parents both reported Indian heritage in Cherokee and Choctaw (father) and Blackfeet (mother). The court ordered the parents to return the questionnaires within two days, and correctly ordered the Department to provide ICWA notice. However, the record reveals that the Department then received information, from the returned ICWA-030 questionnaire, that the minor’s family members recently resided on a reservation of the Round Valley tribe, which is federally recognized. (See 82 Fed.Reg. 4915, 4918 (Jan. 17, 2017).) This revelation provided the Department reason to know the minor may be eligible for membership or services with that tribe. Notice was required.

DISPOSITION

The orders of the juvenile court terminating parental rights are conditionally reversed, and the matter is remanded to the juvenile court with directions to order the Department to proceed in accordance with this opinion, including any further inquiry and notice required by the ICWA. If, after complete notice, the minor is determined to be an Indian child as defined by the ICWA, the juvenile court must conduct a new section 366.26 hearing in conformity with all provisions of the ICWA. If no response is received or the BIA or the tribes determine the minor is not an Indian child, the juvenile court shall reinstate all previous findings and orders.

/s/

Duarte, J.

We concur:

/s/

Murray, Acting P. J.

/s/

Hoch, J.