In re Michael Z.

Filed 7/25/06 In re Michael Z. CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

The juvenile court terminated the parental rights of David Z. and Alana R., finding their child Michael Z. adoptable and declining to find that he would benefit from a continuing relationship with the parents (Welf. & Inst. Code, § 366.26, subd. (c)(1)(A)).[1] David and Alana appeal, contending that substantial evidence does not support the finding Michael was adoptable and that the juvenile court failed to secure compliance with the notice requirements of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). David also argues that his trial counsel's conflict of interest compels reversal. Alana separately claims the court erred in terminating her parental rights because she established the parental bond exception to termination contained in subdivision (c)(1)(A) of section 366.26.

We agree that the juvenile court failed to secure compliance with ICWA's notice requirements, and we reverse and remand for further compliance with ICWA. In all other respects, we affirm the order.

Factual and Procedural History

Michael, born in March 2004, tested positive for methadone at birth and required hospitalization for withdrawal symptoms. At the time of delivery, his mother, Alana, tested positive for amphetamines, cocaine, and methadone. She had an extensive criminal and substance abuse history. She also had a long history of dealings with Child Protective Services (CPS), and her four other children were being raised by relatives. The presumed father, David, was a recovering heroin addict who had been on methadone for the previous 10 years. He also had a lengthy criminal history.

On April 8, 2004, the Alameda County Social Services Agency (Agency) filed a petition alleging that Michael came within the provisions of section 300, subdivisions (b) (failure to protect minor), (g) (no provision for support), and (j) (minor's sibling has been abused). In the petition, the Agency alleged that the mother had a long history of chronic substance abuse interfering with her ability to parent, that she had an extensive background of involvement with CPS, and that she was a drug offender registrant (Health & Saf. Code, § 11590) with a criminal history dating back to 1987. The Agency alleged that the father's ability to care for the minor was unknown, and it alleged that the minor's four half-siblings had been removed from the parents for physical abuse, substance abuse, and neglect. The juvenile court ordered the minor detained. In the jurisdiction/disposition report, the Agency recommended striking the lack of support allegation under section 300, subdivision (g), and amending the petition to add allegations under subdivision (b) of section 300 regarding the father's extensive criminal and substance abuse history, which interfered with his ability to parent the minor.

After both parents filed waivers submitting on the petition filed under section 300, the juvenile court adjudged the child a dependent of the court and found true the allegations as amended under subdivision (b) and as alleged under subdivision (j) of section 300. The court ordered reunification services to be provided to the father only. Michael was placed in the home of his maternal aunt and uncle in Crescent City. David and Alana wanted Michael to be placed with the maternal aunt and stated they would be willing to travel to Crescent City two weekends a month at their expense to visit with Michael.

In the status report prepared for the six-month review, the Agency recommended termination of David's reunification services due to his failure to complete required counseling sessions and other elements of his case plan. The Agency also recommended setting a section 366.26 hearing to terminate parental rights.

The juvenile court continued the six-month review hearing several times. Before the continued hearing date, David filed a motion objecting to various aspects of his case plan and Alana filed a section 388 modification petition in which she sought to modify the disposition order to allow in-home placement and to receive reunification services.

On January 28, 2005, the court conducted the six-month review hearing and also heard David's motion and Alana's section 388 modification petition.

The court denied David's motion as untimely and denied Alana's section 388 petition as not in the best interests of the minor. The court found that the Agency had satisfied ICWA notice requirements. The court ordered that services to the father be terminated and set the case for a permanency planning hearing pursuant to section 366.26. David challenged the order by writ petition, which this court denied on the merits on March 30, 2005.

The Agency's report for the section 366.26 hearing recommended continuing the matter for 90 days to address allegations made by Alana concerning the foster home. Specifically, Alana alleged that the foster father smoked marijuana and that the father of the foster mother (Alana's step-father) was a sexual offender who resided in the home and had access to the minor. In an investigation undertaken by a Del Norte County social worker at the request of the Agency,[2] the foster mother denied that her father resided in the home although she admitted he visited the home and used it as his mailing address. While the foster mother's father did have a criminal record, he had no charges or convictions for sex crimes. The investigation also revealed that the foster father smoked marijuana for what he described as chronic back pain. He denied smoking marijuana in the presence of the children and stated he had an appointment to be assessed for a medical marijuana prescription.

Although the Agency recommended continuing the matter for further investigation, it concluded it was likely the minor would be adopted. An adoption assessment completed in October 2004 found Michael adoptable. He had been placed with his maternal aunt and uncle, who desired to adopt him and who had already adopted one of Michael's older half-siblings. The social worker further wrote: â€