In re Michaela C.

Filed 3/5/07 In re Michaela C. CA2/8

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE JUVENILE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

APPEAL from an order of the Superior Court of Los Angeles County. Marilyn Mackel, Commissioner. Affirmed in part and reversed with instructions.

Maureen L. Keaney, under appointment by the Court of Appeal, for Defendant and Appellant.

Raymond G. Fortner, Jr., County Counsel, Larry Cory, Assistant County Counsel, and Jerry M. Custis, Deputy County Counsel, for Plaintiff and Respondent.

___________________________________

Defendant and appellant Susan C. (mother) appeals from the judgment terminating her parental rights to her daughter, Michaela C. Mother contends, and the Department of Children and Family Services (the department) agrees, that the judgment must be reversed because the juvenile court failed to comply with the requirements of the Indian Child Welfare Act (ICWA). In addition, mother contends (1) evidence of the prospective adoptive parents ability to care for Michaelas special needs was admissible and (2) the finding of adoptability was not supported by substantial evidence. We reverse with instructions to the juvenile court to comply with the notice requirements of the ICWA; in all other respects, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Michaela was born with CHARGE syndrome, an acronym for a number of birth defects which, in Michaelas case, include a cleft lip, hearing deficit, speech impairment, blocked nasal passages, heart deformities and internal abnormalities that have on occasion required a gastro-intestinal feeding tube. Michaela was two years old on June 21, 2003, when she and her older siblings, Timothy and Madelynne, were detained after a social worker responding to a referral found the children living in unsanitary conditions. A Welfare and Institutions Code section 300 petition was filed as to all three children.^[1] Soon thereafter, mother gave birth to Charlotte, who was also detained and made the subject of the petition. Charlotte was eventually adopted and the older children reunified with father. Accordingly, only Michaela is the subject of this appeal.

The ICWA

According to the detention report, the ICWA did not apply. But at the detention hearing on June 25, 2003, in response to an inquiry from the trial court, father stated that he had been told by his paternal great-grandmother in Oklahoma that he had Blackfeet and Cherokee heritage. Accordingly, the juvenile court ordered the department to give notice of the proceedings to the Blackfeet and Cherokee Tribes in Oklahoma, as well as the Bureau of Indian Affairs. Father gave the following information: his mothers name was Jane Cottle; his great-grandmothers name was Bessie Nicholas and she lived in Moorepark. The juvenile court ordered the department to, if possible, interview the paternal great-grandmother and great-great-grandmother regarding the issue of native heritage.

On July 16, 2003, the department sent a form Notice of Involuntary Child Custody Proceeding Involving an Indian Child, by certified mail, return receipt requested, to: (1) the Blackfeet Tribal Business Council, in Browning, Montana; (2) the Cherokee Nation of Oklahoma; (3) the United Keetoowah Band of Cherokee in Oklahoma; and (4) the Bureau of Indian Affairs in Sacramento. The department also served all four agencies with a form Request For Confirmation of Childs Status As Indian. The request for confirmation identified father by name, birth date and tribal affiliation (Blackfeet & Cherokee) but did not give his birthplace; the paternal grandmother was also identified by name, but no other information about her was provided; according to the request, information about the paternal grandfather and great-grandparents was unknown, although father had provided some of this information at the hearing.

The department received the following responses: the Blackfeet Tribe responded that none of the children was an Indian Child within the meaning of the ICWA; the Keetoowah Band responded that it had found no evidence that the children were descended from anyone on the enrollment records of the band, and they were therefore not eligible for enrollment; the Cherokee Center for Family Services responded that the children were not considered Indian registered with the Eastern Band of Cherokee Indians tribal registry and were not eligible to do so; and the Bureau of Indian Affairs responded that the request contained insufficient information identifying a federally recognized tribe and that names, birth dates and/or birthplaces of the childrens paternal ancestors traced back to the year 1900 was needed.

The reports filed by the department for the August 14, 2003 and September 10, 2003, hearings continued to indicate that the ICWA does or may apply. Notice of the September 10, 2003 hearing was given to (1) the Blackfeet Tribal Business Council; (2) the Cherokee Nation of Oklahoma, (3) the United Keetoowah Band of Cherokee; (4) Bureau of Indian Affairs; as well as (5) the Eastern Band of Cherokee Indians in North Carolina. The department also submitted a form Request for Confirmation of Childs Status as Indian to the Eastern Band of Cherokee Indians.

Regarding the ICWA, the notice for the review hearing on March 11, 2004, referred the juvenile court to all notices to Indian Tribes. At the hearing, at which both mother and father appeared, father informed the juvenile court that the names the department submitted to the Indian agencies were incorrect; father gave the following additional information: his great-grandmother, Bessie Murray, was born on February 14, 1904, and was registered with the Cherokee tribe in Oklahoma; Murray lived with her daughter, Lauri Barbee, whose telephone number father gave to the juvenile court. The juvenile court ordered the department to communicate with the paternal grandmother regarding the Native American heritage on the Cottle side of the family. The registered person is Bessie Murray and thats the Cherokee Band in Oklahoma; [] and additional notices needs to be provided to him with the names of the grandparents as indicated. The juvenile court ordered the department to notice the Indian agencies with the additional information provided by father. The record does not indicate what steps the department took, if any, to comply with this order. The record does not include copies of any notices containing the additional information.

On the status review report for the September 9, 2004 hearing, the space for ICWA status was left blank. The status report for the next hearing on March 10, 2005, and all further reports, indicated that the ICWA did not apply. There is no indication that the juvenile court ever made any express finding as to whether the children were Indian children.

1. The Dependency Proceedings

Meanwhile, on September 11, 2003, after mother and father submitted on an amended petition, the juvenile court found the children were dependent children within the meaning of section 300, subdivisions (b) and (j).

On October 15, 2003, the social worker had contact with mother but no other communication by the time of the March 11, 2004, hearing. By September 9, 2004, mother had not visited Michaela in placement; she had scheduled one visit with Michaelas caretaker which she did not attend, and she had not contacted the caretaker or the department again. Mother had neither participated in the case plan nor complied with court orders. Mother was present in court the morning of the September 9, 2004 hearing, but left before the hearing began. That day, the juvenile court terminated mothers reunification services as to Michaela, but allowed her continued monitored visits.

At the next hearing on March 10, 2005, father was in compliance with the case plan and was seeking Michaelas return to him. The matter was set for a contested section 366.22 hearing.

Mother did not appear at the contested hearing on April 20, 2005, but was represented by counsel. Michaelas social worker testified that adoption was the recommended permanent plan and that the foster mothers sister, who had been assisting in Michaelas care as an employee of the foster mother, was interested in adopting Michaela. The hearing was continued but before it resumed, a section 387 supplemental petition was filed as to Michaelas older siblings who had reunified with father but were detained again because (1) father had allowed mother to reside in the home and have unmonitored visits with them in violation of court orders, and (2) the children had witnessed a violent confrontation between mother and father as a result of which father was arrested for corporal injury to a spouse. Hearing on the section 387 petition as to the siblings and the still pending section 366.26 hearing as to Michaela were continued to May 25 , 2005.

According to the report prepared for the May 25, 2005 hearings, the whereabouts of both parents were now unknown. The trial court announced its tentative decision to terminate all reunification services as to Michela, but continued the matter with orders that the department exercise due diligence to locate the parents.

By August 17, 2005, the foster mothers sister had been identified as a prospective adoptive parent for Michela, but her home study was not concluded. Neither parent had visited Michaela. Because the departments due diligence as to mother was not complete, the hearing was continued, and then continued several more times over the next few months.

By April 2006, the home study for Michaelas adoptive home had been approved and the department requested that monitored visits with Michaela be terminated. The recommendation was supported by Michaelas psychologist; based on mothers extreme emotionality which was likely detrimental to Michaelas transition into her adoptive home.^[2] Although father agreed to adoption so long as the adoptive family would allow the siblings to maintain a relationship with Michaela; mother opposed adoption.

At the continued section 366.26 hearing on April 10, 2006, counsel for mother urged the juvenile court to select legal guardianship as the permanent plan. She argued: (1) although Michaela had been in the same placement since the inception of dependency proceedings and was, by all accounts, doing well, the prospective adoptive parent was not completely aware of Michaelas continuing medical needs; (2) both the sibling and ongoing parent relationship exceptions to the preference for adoption applied ( 366.26, subds. (c)(1)(A) & (E)); and (3) Michaelas adoptability had not been established.

Unpersuaded, the juvenile court terminated mothers and fathers parental rights as to Michaela. It found that, notwithstanding her special needs, Michaela was adoptable; the ongoing parent relationship did not apply because mother had not visited Michaela in over a year; and there was no evidence that the sibling bond exception applied.^[3]

Mother filed a timely notice of appeal.

DISCUSSION

1. Notice Did Not Comply With the ICWA

Mother contends, and the department concedes, that the juvenile court did not comply with the notice provisions of the ICWA (25 U.S.C.  1901 et seq.).^[4] We agree.

The ICWA requires that, if the juvenile court knows or has reason to know that an Indian child is involved in the dependency proceedings, notice of the proceedings and appropriate identifying information must be given to the Indian childs tribe. (25 U.S.C.  1912(a); see also Former Cal. Rules of Court, rule 1439(f).)^[5] The department must make reasonable efforts to obtain the information from the parents. (See e.g. In re Jennifer A. (2002) 103 Cal.App.4th 692, 705.) Determination of tribal membership or eligibility for membership is made exclusively by the tribe and a tribes determination is conclusive. (Rule 1439(g)(1).)

Here, the juvenile court had reason to believe that Michaela may be an Indian child. Although notices were sent to the relevant tribes and the Bureau of Indian Affairs as required by the ICWA, the contents of those notices did not comply with the ICWA because they did not include [a]ll names known, and current and former addresses of the Indian childs biological mother, biological father, maternal and paternal grandparents and great grandparents or Indian custodians, including maiden, married and former names or aliases; birthdates; places of birth and death; tribal enrollment numbers, and/or other identifying information. (25 C.F.R. 23.11(d)(3).) Compliance with the ICWA is not a mere technicality, and the absence of notice in a case such as this means the order terminating . . . parental rights must be conditionally reversed[.] (In re Elizabeth W. (2004) 120 Cal.App.4th 900, 908.) Accordingly, we reverse and remand for compliance with the ICWA and a finding by the juvenile court as to whether Michaela is an Indian child.^[6]

2. There Was Substantial Evidence That Michaela Was Adoptable

Mother contends the finding of general adoptability was not supported by substantial evidence. She argues that the fact Michaela suffers from CHARGE syndrome makes her not generally adoptable. We found no error.

a.      Standard of Review

 On review of the sufficiency of the evidence [supporting a finding of adoptability], we presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. [Citation.] The clear and convincing standard is for the edification and guidance of the juvenile court. It is not a standard for appellate review. [Citation.]  The sufficiency of evidence to establish a given fact, where the law requires proof of the fact to be clear and convincing, is primarily a question for the trial court to determine, and if there is substantial evidence to support its conclusion, the determination is not open to review on appeal. [Citations.] [Citation.] Thus, on appeal from a judgment required to be based upon clear and convincing evidence, the clear and convincing test disappears . . .  [and] the usual rule of conflicting evidence is applied, giving full effect to the respondents evidence, however slight, and disregarding the appellants evidence, however strong. [Citation.] [Citation.] (In re J. I. (2003) 108 Cal.App.4th 903, 911 (J. I.).)

b.      There Was Substantial Evidence That Michaela Was Likely To Be Adopted

At a section 366.26 hearing the juvenile court is expected to select a permanent placement plan for a dependent child. The preferred plan is adoption. ( 366.26, subd. (b).) In order to select adoption as the permanent placement plan the juvenile court must find by clear and convincing evidence that it is likely that the child will be adopted. In making that determination the court focuses on whether the childs age, physical condition and emotional state will create difficulty in locating a family willing to adopt her. [Citation.] (J. I., supra, 108 Cal.App.4th at pp. 910-911.)

In Asia L., supra, 107 Cal.App.4th 498, the three siblings suffered from severe emotional and psychological problems. The juvenile court found that there was not sufficient evidence of their adoptability because there was no identified prospective adoptive family and the foster familys willingness to consider adoption was too vague to constitute evidence that some family, if not that family, would be willing to adopt. (Id. at pp. 512-513.) In coming to this conclusion, the juvenile court in Asia L. distinguished In re Sarah M. (1994) 22 Cal.App.4th 1642 (Sarah M.), in which the juvenile court found that the finding of adoptability was supported by the foster parents willingness to adopt the children (although she had not yet been approved), as well as the childrens young ages and their good physical and emotional health, progress in therapy, intellectual and academic growth, and ability to develop interpersonal relationships. (Id. at p. 1648.)

Here, the juvenile court found Michaela adoptable, observing: This is a child who does have special need[s], but who has all of the personal characteristics that people like to see when they are adopting. She is social. She is friendly. She is active. She is playful. She has a mind of her own. She can be stubborn sometime[s]. It doesnt sound like a special needs child who has the kind of issues that are going to be a cause for any parents concern down the pike, so to speak. [] The court find[s] by clear and convincing evidence that the child is adoptable . . . .

This case is more similar to Asia L. than to Sarah M. This is because, like in Asia L., and unlike in Sarah M., there was an approved adoptive home for Michaela. This evidence, in addition to the evidence of Michaelas age and personality traits, supports the juvenile courts finding that Michaela was adoptable.

2. The Juvenile Court Did Not Exclude Evidence of the Suitability of the Prospective
Adoptive Parent

As we understand mothers contention, it is that the juvenile court erred in sustaining relevancy objections to questions posed to mother concerning the prospective adoptive mothers ability to meet Michaelas special needs. We disagree.

If the child is considered generally adoptable, we do not examine the suitability of the prospective adoptive home. [Citation.] However, where the child is deemed adoptable based solely on the fact that a particular family is willing to adopt him or her, the trial court must determine whether there is a legal impediment to adoption. [Citation.] (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061 (Carl R.).)

In Sarah M., the court identified the legal impediments to adoption as the statutory limitations on the age of the adoptive parent, the requirement of the consent of a child over the age of 12 years, and the requirement of the consent of the spouse of an adoptive parent. (Sarah M., supra, 22 Cal.App.4th 1642.) In Carl R., the court extended legal impediment to adoption to include the prospective adoptive parents ability to meet the childs needs. It reasoned that, where a child is specifically adoptable because a particular family is willing to adopt that child, but the child will need total care for life, the assessment of adoptability must necessarily include some consideration of whether the prospective adoptive parents can meet that childs needs, since if the prospective adoptive parents cannot meet the childs needs, the child cannot properly be found to be adoptable. (Carl R., supra, 128 Cal.App.4th at p. 1062.)^[7]

For the section 366.26 hearing, the department is required to provide the juvenile court with a preliminary assessment of the prospective adoptive parent[s] including their social history, screening for criminal records and prior referrals for child abuse or neglect, together with an assessment of the capability of the prospective adoptive parents to meet the childs needs, and whether they understand the legal and financial rights and responsibilities of adoption. ( 361.5, subd. (g)(4), 366.21, subd. (i)(4), 366.22, subd. (b)(4).) (Carl R., supra, 128 Cal.App.4th at p. 1063.)

Here, the section 366.26 report for the April 12, 2006, hearing gave the following information about the prospective adoptive parent. Regarding social history, the report noted that she had lived in Los Angeles for six years after moving here from Mexico; she was married, but separated from her husband; she has one child who was then 11 years old; she had lived in the home behind Michaelas current caregiver for several years and for three to four years had worked for the caregiver as a care provider; during that time, she assisted in Michaelas care, and may have even been Michaelas primary caregiver. The prospective adoptive parent had no criminal history and no history of child abuse. Regarding her ability to meet Michaelas needs, the report states: The prospective adoptive parent appears to be capable of meeting Michaelas needs. She has worked for the current caregiver during which she has participated in caring for Michaela. She is aware of Michaelas behavioral, medical and communication needs. The prospective adoptive parent is now learning sign language to improve her communication with Michaela. She presents as being aware of her needs and wants. [] The prospective adoptive parent reported that she has extended family support and that she can provide a stable home environment for Michaela. A letter to the juvenile court from Michaelas speech pathologist states: Not only does Michaela appear to be physically well cared for but she has had obvious help at home in all areas of pre-academic learning. In my experience, children do not blossom the way Michaela has blossomed without people in their lives who care deeply for them and reinforce what school personnel are trying to teach. Her progress in all areas can be directly linked to her stable family life and being surrounded by people who care about her and support her learning.

At the hearing, the juvenile court sustained relevancy objections to the following questions posed to mother: When did Michaela contract CHARGE syndrome? What kind of care does Michaela require? During the two years Michaela lived with mother, what did mother do to care for her? Would the adoptive parent have to have special training to take care of Michaela?^[8] Where did mother receive her special training? Where would an adoptive parent receive CHARGE syndrome training? Did mother ever take Michaela to a doctor to determine whether Michaela would ever be able to speak? Was mother given a prognosis of what Michaela would need in the future?

We conclude that the challenged questions, all posed to mother, who had not cared for Michaela in almost three years, were not probative of whether the prospective adoptive mother had the ability to care for Michaelas special needs. By contrast, the reports prepared by the department constituted substantial evidence that the prospective adoptive mother, who had actually been caring for Michaela for several years, was capable of continuing to care for Michaelas special needs in the roll of adopted mother.

3. The Sibling Relationship Exception to the Preference For Adoption Does Not
Apply

Mother contends the juvenile court erred in finding that the section 366.26(c)(1)(E) exception for interference with a childs sibling relationship did not apply. She argues that the evidence Michaela was raised with her siblings for two years, during which time they shared common experiences, was enough to trigger the exception. We disagree.

Section 366.26, subdivision(c)(1)(E) provides for an exception to the preference for adoption where [t]here would be substantial interference with a childs sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the childs best interest, including the childs long-term emotional interest, as compared to the benefit of legal permanence through adoption.

The statutory exceptions to the preference for adoption merely permit the court, in exceptional circumstances [citation], to choose an option other than the norm, which remains adoption. [Citation.] (In re Naomi P. (2005) 132 Cal.App.4th 808, 822.) The party opposing adoption on the grounds of the sibling relationship exception bears a heavy evidentiary burden.  [E]ven if adoption would interfere with a strong sibling relationship, the court must nevertheless weigh the benefit to the child of continuing the sibling relationship against the benefit the child would receive by gaining a permanent home through adoption. [Citation.] [Citation.] (Id. at p. 823.)

Here, evidence that Michaela showered her siblings with smiles, hugs and kisses during visitations is not sufficient to establish that the benefit of maintaining the sibling relationship is greater than the benefit of the permanency of adoption. This is especially so in light of the fact that Michaelas prospective adoptive mother and the custodial parent of her siblings have expressed an intention to facilitate continued sibling visits.

DISPOSITION

The order terminating parental rights is conditionally reversed, and the cause is remanded to the juvenile court with directions to conduct such further proceedings as are necessary to establish full compliance with the notice requirements of the ICWA. If, after compliance, no response is received from any of the tribes or the Bureau of Indian Affairs indicating Michaela is an Indian child, or the responses received indicate Michaela is not an Indian child within the meaning of the Act, the order terminating parental rights shall be immediately reinstated and such further proceedings as are appropriate shall be conducted. If any of the tribes or the Bureau of Indian Affairs determines that Michaela is an Indian child within the meaning of the Act, the dependency court shall proceed accordingly. In all other respects, the orders are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

RUBIN, J.

WE CONCUR:

COOPER, P. J.

FLIER, J.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

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

^[2] Meanwhile, on December 6, 2005, mother had entered a residential chemical dependency program. Later, she received treatment for bipolar and post-traumatic stress disorders.

^[3] The juvenile court did, however, direct the department to look into a post-adoptive sibling contract.

^[4] Mother, although not Indian, has standing to assert an ICWA notice violation on appeal. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.)

^[5] Effective January 1, 2007, rule 1439 was renumbered rule 5.664. We refer to the former rule number, which was in effect at the time of the dependency proceedings. All further rule references are to the California Rules of Court.

^[6] Whether explicit ICWA findings are required is unsettled. (See In re Asia L. (2003) 107 Cal.App.4th 498, 506 (Asia L.); In re Jennifer A., supra, 103 Cal.App.4th at p. 705; In re Levi U. (2000) 78 Cal.App.4th 191, 199.) We believe the better practice is for the juvenile court to make an explicit finding.

^[7] In Carl R., the issue was whether the phrase the capability to meet the childs needs included an assessment of the prospective adoptive familys specific educational plan, which was to home school Carl, who would require total lifetime care because he had cerebral palsy, severe quadriparesis, a seizure disorder, and an uncontrolled and severe psychomotor delay. (128 Cal.App.4th at p. 1063.) The juvenile court concluded that inquiry into the specifics of the educational plan was not appropriate. (Ibid.) It found that the evidence that the prospective adoptive family had raised 40-50 special needs children, had adopted two other total needs children, and were committed to meeting Carls educational needs, was sufficient to support the finding that the family would educate Carl.

^[8] Ironically, there was no objection to the question: What kind of special training does the parent who is raising this child have to have?