In re K.K.
Filed 7/12/13 In re K.K. CA2/8
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opinion has not been certified for publication or ordered published for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
SECOND
APPELLATE DISTRICT
DIVISION
EIGHT
In re K.K. et al., Persons
Coming Under the Juvenile Court Law.
B245255
(Los Angeles
County
Super. Ct.
No. CK69615)
LOS ANGELES COUNTY DEPARTMENT
OF CHILDREN AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
N.O.,
Defendant and Appellant.
Appeal
from an order of the Superior Court
of
County. Anthony
Trendacosta, Juvenile Court Referee.
Affirmed in part; reversed in part and remanded with directions.
Lori
A. Fields, under appointment by the Court of Appeal, for Defendant and
Appellant.
John
F. Krattli, County Counsel, James M. Owens, Assistant County Counsel, and
Jacklyn K. Louie, Deputy County Counsel for Plaintiff and Respondent.
* *
* * * * * *
Appellant N.O. (mother) appeals from
the juvenile court’s order terminating her parental rights to two of her minor
children and finding the children adoptable.
Mother argues there is no substantial evidence supporting the court’s
determination the children are both generally and specifically adoptable. Mother further contends notice pursuant to
the Indian Child Welfare Act (ICWA) was deficient. We conclude substantial evidence supports the
court’s order finding the children adoptable and affirm that finding.
However, as
respondent Department of Children and
Family Services concedes, the ICWA notice was deficient. Therefore, we conditionally reverse the order
terminating parental rights and remand with directions to the juvenile court to
order the Department to make reasonable inquiry regarding possible Indian
ancestry, and to re-serve all requisite ICWA notices. If, after receiving proper notice, no timely
response is received or no tribe indicates the children are Indian children
within the meaning of ICWA, then the juvenile court shall reinstate its order
terminating parental rights. If however,
any response raises a substantial question the children are Indian children,
the trial court shall hold further proceedings consistent with the statutory
scheme.
This
dependency case has been pending since 2007.
Because mother challenges only the court’s order of September 11, 2012,
finding the children adoptable, and the adequacy of the ICWA notices, we
summarize only those facts and procedural issues germane to our discussion of
those issues, as well as some additional matters for context.
Mother’s
two minor children, K.K. and E.O., came to the attention of, and were detained
by, the Department in August 2007 based on a referral of general neglect. At the time of detention, K.K. was nine years
old and E.O. was eight months old. The
children lived with mother and an adult half brother. During its investigation, the Department
learned mother had been seen swinging E.O. in a circular motion by one of his
arms, often yelled at the children or left them unattended, and otherwise
exhibited erratic behavior. Mother had
an 18-year history of substance abuse (cocaine and marijuana), suffered from
mental health issues, including bipolar disorder, and had a lengthy criminal
record.
The
Department filed a petition pursuant to Welfare and Institutions Code
section 300.
title="">[1] At the adjudication hearing, the court
sustained the petition pursuant to section 300, subdivisions (a) and (b) based
on the allegations of mother’s physical abuse of E.O. and mother’s substance
abuse and mental health issues which resulted in her failing to provide and
care for the children.
The maternal aunts
cooperated with the Department’s investigation.
E.O. had been born with a cleft palate and suffered from additional
congenital anomalies, including hypertelorism (wide-spaced eyes). Mother had not been consistent in taking E.O.
to his doctors for recommended corrective surgeries and general medical
care. K.K. had some developmental
delays, did not read well, and was having difficulty in school. The aunts believed she had been diagnosed as
suffering from attention deficit disorder.
K.K. also reported sexual abuse by her adult half brother. Aunt B.G. explained mother’s long history
with substance abuse and that she had taken care of the children in the past
when mother had been incarcerated. She
said the family always stepped in to help.
B.G. expressed interest in taking custody of the children again.
After only several
days in B.G.’s care, the children were returned to the Department because
mother threatened to burn down B.G.’s house.
The children were placed with their adult half sister, K.G., who
expressed an interest in adopting her siblings.
However, after the home study for the half sister had been initiated,
the social worker visited the home for an inspection and smelled marijuana. The children were subsequently removed from
K.G.’s home and placed with a nonrelative foster care parent.
Mother initially
denied any Indian heritage. The
detention report indicates that according to unspecified “family members,†the
family had no Indian ancestors. However,
at the August 21, 2007 hearing, a maternal aunt reported there might be Sioux
or “Sequoia†Indian heritage on their side of the family.
the maternal aunts and send appropriate notices. Mother routinely resisted speaking with the
social workers concerning her possible Indian heritage, but over a year later,
reported she had Blackfoot ancestry through a “maternal grandfather William
S.†The court ordered that notices be
forwarded to the Blackfoot tribes and to the Bureau of Indian Affairs
(BIA). Notices were sent to the
Blackfoot tribe and BIA, but the notices did not identify William S. or
otherwise provide any information regarding him. Mother further reported she spoke with an
aunt and a cousin who denied any Indian heritage in the family and that those
two relatives did not want to speak directly with the Department about it. The court made a finding ICWA did not
apply.
The Department
made extensive efforts to afford mother the opportunity to obtain reunification
with her children. Mother was often
uncooperative with the social workers and routinely failed to appreciate the
best interests of the children. For
instance, despite knowledge of the sexual abuse allegations by K.K. regarding
her adult half brother and an order that K.K. not have contact with him, mother
would attend visits with the children in the company of the half brother. Mother also sought to have K.K.’s therapy
terminated as unnecessary. Most
significantly, mother continued to abuse drugs and engage in conduct resulting
in her incarceration on numerous occasions during the pendency of these
proceedings.
Following one such
period of incarceration, mother began to make progress with services, including
regularly testing clean and completing a parenting class. Visits with the children went well and the
Department recommended a return of the children to mother. The court followed the Department’s
recommendation, ordered the children released to mother, and ordered family maintenance
and family preservation services. On
September 22, 2009, the children were placed with mother, who was living at
that time with one of her sisters, and the sister’s two teenage daughters.
Upon regaining
custody of her children, mother almost immediately relapsed into abusing drugs,
tested positive for cocaine, and left the children unsupervised at night
outside the home. The Department filed a
section 342 petition, citing section 300, subdivision (b), and once again
detained the children and placed them in foster care. In March 2010, K.K. was placed in the foster
home of Ms. E., while E.O. was placed in the foster home of Ms. D. The children have stayed in those placements
since that time. Ms. E applied to
adopt K.K. and Ms. D. applied to adopt E.O.
On September 15,
2010, the court sustained the section 342 petition and terminated the
home-of-mother placement order, as well as further reunification services for
mother. The court identified adoption as
the permanent plan for both children.
The assessment
reports document the children’s special needs in depth, and identify the steady
progress each child was making with the provision of court-ordered services and
the care and attention provided by Ms. D. and Ms. E. Both prospective adoptive parents
consistently maintained their desire to adopt.
Ms. D. declined to take on additional foster children, because of her
attachment to E.O. and her desire to focus her attention on his
well-being. K.K.’s care was funded at a
higher rate, but Ms. E. agreed to accept the basic rate to ensure K.K.
would be placed with her. Each
prospective parent indicated her respective belief that adoption would offer
the most stability for the children as opposed to legal guardianship or other
alternative plan. Home studies were
initiated with both prospective adoptive parents.
The home study was
completed and approved as to Ms. D.
However, an update was required after Ms. D. suffered a medical
condition requiring surgery in March 2012.
The Department requested medical clearance from her doctor that her
medical problem did not impact her continued ability to provide a permanent
home for E.O.
There
was some delay in completing the home study for Ms. E. because of an initial
error by the Department in forwarding her the paperwork and because of her work
schedule as a bank trust officer. Ms. E.
consistently maintained her desire to adopt K.K., stating she loved K.K. like
she was her biological child. Ms. E. had
previously adopted another child and the Department did not identify any legal
impediments to her being approved to adopt again.
In
January 2012, the Department reported that adoption remained the best option
for the children, explaining “Ms. D and Ms. E continue to express their desire
to adopt [E.O. and K.K.] respectively and to provide them with a permanent
plan. Both caregivers treat the children
as their own biological children. The
children have bonded with the family and have developed an ongoing attachment
with the family members.â€
E.O.
was reported to be excelling in first grade, receiving awards for math and
language proficiency, good attendance, and being on the honor roll. The school psychologist described E.O. as
“functioning in the high average range of cognitive ability,†with “very strong
math skills,†an ability to make friends easily, and generally a “kind†and
“loveable†child. The surgical
interventions he had received had improved his congenital anomalies, although
his doctors reported that some additional corrective surgeries would be
required, including a procedure to assist with some mild conductive hearing
loss. E.O. was not a regional center
client. Ms. D. was described as a strong
advocate for E.O. who provided a “loving and supportive environment†for the
child.
K.K.
was getting ready to start high school in September and looking forward to
participating in track and field sports.
Her behavior continued to improve due to the high level of care and
commitment she was receiving from Ms. E.
According to K.K.’s therapist, K.K. was more outspoken, had greater
self-esteem and was learning to take responsibility for her actions. She had also made strides in coping with and
relating to “the traumas she had experienced in the past while in the custody
of her mother.†K.K. was “doing well and
making lots of improvement/adjustments as to her behavior.†Ms. E. was reported to be fiercely
protective of K.K. and a good caregiver who loves K.K. “unconditionally.â€
In
“last minute information†reports submitted for each child for the permanency
planning hearing, the Department reported on the status of the home
studies. As to Ms. E., the
Department reported the home study was complete, except for a final meeting,
scheduled for the next day, with Ms. E. at her home to interview the two other
children who live with her, including a biological child and the other adopted
child. The social worker reported, “This
last appointment removes any impediment to the completion of the process.†As to Ms. D., approval was pending on the
supplemental home study regarding Ms. D.’s postsurgery health status. The social worker reported she did “not
foresee any barriers to the approval of the home study update.â€
The
contested section 366.26 hearing was held September 11, 2012. Mother, who was again incarcerated on a
probation violation, was present, in custody, and represented by counsel. The court received, without objection, the
Department’s section 366.26 reports dated September 14, 2011, and January 11,
2012, interim review report dated June 14, 2012, the status review report
dated August 16, 2012,
name="_ftnref3" title="">[3] the “last minute information†reports for each
child dated September 11, 2012, and both of the children’s birth
certificates. Mother testified briefly,
explaining she had weekly visits with the children on Saturdays, but since she
had been incarcerated she was writing letters to them instead or trying to
call. She expressed her love for her
children and her desire to complete an outpatient program upon her release and
regain custody. She conceded on
cross-examination the last time she regained custody of the children, she
relapsed and started using cocaine again and the children were returned to
foster care. During argument, counsel
for mother acknowledged a lack of evidence showing a legal basis for an
exception to the termination of parental rights.
In
terminating parental rights, the court found no statutory exception preventing
termination had been established. The
court found by clear and convincing evidence that, despite the children’s
special needs, there was nothing in the record indicating they were not likely
to be adopted within a reasonable time.
The court found the children to be both generally and specifically
adoptable.
This
appeal followed.
DISCUSSION
Order Finding the Children Adoptable
Mother does not
urge us to reverse the order terminating parental rights and return the
children to her custody. Mother concedes
the current caregivers are committed to the children, and that the children are
receiving excellent care and have formed close emotional relationships with
them. Rather, mother argues there is no
substantial evidence supporting the finding the children are generally
adoptable, given their special needs, and that without completed home studies
for the two prospective homes, the special adoptability finding is improper as
well. Mother argues if there is an
impediment to either of the two prospective adoptive mothers formally adopting
the children, they will be at risk of becoming legal orphans and separated from
the caregivers to whom they have become bonded.
Mother argues there is no evidence suitable alternative adoptive homes
could be found for either child in a reasonable period of time in accordance
with the statutory scheme. Mother
contends the court’s order was premature, given the lack of approved home
studies, and the court should have considered alternative plans under section
366.26, subdivision (c)(1)(B)(iv) such as legal guardianship or long-term
foster care with the current caregivers. We are not persuaded.
“A finding of
adoptability requires ‘clear and
convincing evidence of the likelihood that adoption will be realized within
a reasonable time.’ [Citation.] 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
B.D. (2008) 159 Cal.App.4th 1218, 1231.)
In reviewing a juvenile court’s finding of adoptability, we are governed
by the substantial evidence test. “[W]e
view the evidence in the light most favorable to the trial court’s order,
drawing every reasonable inference and resolving all conflicts in support of
the judgment.†(In re Marina S. (2005) 132 Cal.App.4th 158, 165; accord,
mother’s burden to establish “there is no evidence of a sufficiently
substantial nature to support the finding or order.†(In re
R.C. (2008) 169 Cal.App.4th 486, 491.)
Substantial
evidence supports the juvenile court’s finding E.O. and K.K. are generally
adoptable. Both E.O. and K.K. have
special needs. E.O. was born with
several congenital anomalies, including a cleft palate. He has already undergone numerous surgeries
and his doctors indicate he will require additional corrective surgeries during
his adolescence. K.K. has some
developmental and behavioral issues, and is over the age of seven. But, the existence of medical, developmental
or behavioral challenges does not preclude a finding of adoptability. (See In
re Helen W. (2007) 150 Cal.App.4th 71, 79 [affirming finding of general
adoptability for two children with significant medical and psychological
problems]; see also In re R.C.,
[affirming finding of general adoptability despite child’s “in utero exposure
to heroin, slight speech delays[,] the absence of an identified father,†and
the possibility of additional future medical problems related to drug
exposure].)
Moreover, the
record is replete with documentation that these children have not only greatly
improved developmentally while living with their respective caregivers, but
also possess numerous positive qualities.
E.O. is doing exceptionally well in school, is developmentally on
target, and is generally described as a loving and happy child. K.K. has made great strides in overcoming her
behavioral issues, largely stemming from experiences suffered while in mother’s
custody. She has started high school and
is looking forward to participating in track and field sports. K.K.’s therapist reported she has shown
improved self-esteem and ability to work through the negative events of her
past. By all accounts, both children are
described as strongly bonded to their respective caregivers, and have loving
relationships with them and their extended families.
Both Ms. D. and
Ms. E. are fully aware of E.O.’s and K.K.’s respective special needs and are
committed to helping them flourish and move beyond their difficult past. Both women have proved to be conscientious
advocates for the children’s needs, and their medical and behavioral challenges
have improved dramatically while in their care.
They work closely with Department staff and all service providers, and
have acknowledged an understanding and appreciation of what will be required of
them as adoptive parents.
The children’s
positive attributes combined with the unwavering desire of both caregivers to
adopt the children strongly supports the court’s finding of adoptability. “[T]he 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
Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650; accord,
869-870 [affirming finding of adoptability based in part on willingness of
prospective adoptive parents to adopt, and rejecting argument that lack of
“backup families†prevents finding of adoptability]; In re A.A. (2008) 167 Cal.App.4th 1292, 1311-1314 [affirming
finding of adoptability for two siblings with developmental delays and
attachment disorder who possessed other positive qualities and prospective
adoptive parents willing to adopt].)
The fact the
supplemental adoptive home study for Ms. D. and the adoptive home study for Ms.
E had not been finalized at the time of the section 366.26 hearing does not
undermine the propriety of the court’s order.
“[T]here is no requirement that an adoptive home study be completed
before a court can terminate parental rights.
The question before the juvenile court was whether the child was likely
to be adopted within a reasonable time, not whether any particular adoptive
parents were suitable. [Citation.] ‘[T]he question of a family’s suitability to
adopt is an issue which is reserved for the subsequent adoption
proceeding.’ [Citation.]†(In re
Marina S., supra, 132 Cal.App.4th
at p. 166.) Ms. D. had been previously
approved and needed only to obtain supplemental approval based on clearance
from her doctor that her 2012 surgery did not impact her ability to care for
E.O. The home study had been completed
for Ms. E. and only a final home inspection was necessary to finalize it. Ms. E. had previously adopted another child. Nothing in the record shows the existence of
any legal impediment to successful adoptions by both prospective adoptive
mothers. The court’s adoptability
finding is properly affirmed.
The ICWA
Notices Were Inadequate
The Department
concedes ICWA notice was not adequate, and does not oppose a limited reversal
to give it the opportunity to complete “proper ICWA inquiry and notice†to the
federally recognized Sioux and Blackfoot tribes.
A
limited reversal to allow for substantial compliance with ICWA is
appropriate. A conditional reversal of
an order terminating parental rights “‘does not mean the trial court must go
back to square one,’ but that the court ensures that the ICWA requirements are
met. [Citations.] ‘If the only error requiring reversal of the
judgment terminating parental rights is defective ICWA notice and it is
ultimately determined on remand that the child is not an Indian child, the
matter ordinarily should end at that point, allowing the child to achieve
stability and permanency in the least protracted fashion the law permits.’ [Citation.]â€
(In re Gabriel G. (2012) 206
Cal.App.4th 1160, 1168; see also In re
Francisco W. (2006) 139 Cal.App.4th 695, 705-707.)
The
threshold for triggering ICWA notice requirements is low. (In re
Gabriel G., supra, 206
Cal.App.4th at p. 1165 [“‘the juvenile court needs only a suggestion of Indian
ancestry’â€].) The Department is charged
with “an affirmative and continuing duty†to inquire whether a dependent child
is an Indian child within the meaning of ICWA and section 224.3, subdivision
(a). (In re Gabriel G., at pp. 1165-1166.) The record here is ambiguous as to the
adequacy of the Department’s efforts to obtain available family history
information and of the notices given by the Department to comply with ICWA and
section 224.2 regarding mother’s possible Indian heritage. For instance, there is no documentation
concerning what efforts, if any, were made to speak with mother’s siblings, all
of whom according to aunt B.G. live in the Los Angeles area. Despite maternal aunt’s statement the family
had possible Sioux heritage, no notice was provided to the Sioux tribes. And, while notice was sent to the recognized
Blackfoot tribes and BIA, the notices did not identify the maternal grandfather
that mother had reported was the relative with possible Indian ancestry
(William S.).
The
Department must make reasonable efforts with mother and her immediate family
members to discharge its inquiry duty to obtain relevant information for the
notices. The Department must then serve
statutorily compliant notices on the requisite tribes. If, after receiving proper notice, no timely
response is received or no tribe indicates E.O. and K.K. are Indian children
within the meaning of ICWA, then the juvenile court shall reinstate its order
terminating parental rights, and proceed with finalizing the adoption process
for both children. If however, any
response raises a substantial question the children are Indian children, the trial
court shall hold further proceedings consistent with the
The
juvenile court’s September 11, 2012 order finding K.K. and E.O. adoptable is
affirmed. However, we conditionally
reverse the court’s order terminating parental rights and remand with
directions to the juvenile court to order the Department to make reasonable
inquiry regarding possible Indian ancestry, and to re-serve all requisite ICWA
notices. If, after receiving proper
notice, no timely response is received or no tribe indicates E.O. and K.K. are
Indian children within the meaning of ICWA, then the juvenile court shall
reinstate its order terminating parental rights. If however, any response raises a substantial
question the children are Indian children, the trial court shall hold further
proceedings consistent with the statutory scheme.
GRIMES,
J.
WE CONCUR:
BIGELOW,
P. J.
RUBIN,
J.
name="_ftn1" title="">[1] All
further undesignated section references are to the Welfare and Institutions
Code.
name="_ftn2" title="">[2] The
Department reported there is no federally recognized “Sequoia†tribe.
