In re Noel T.

Filed 4/5/07 In re Noel T. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

Carrie P. (mother) appeals from a judgment of the juvenile court terminating parental rights to her infant daughter and establishing adoption as her permanent plan. (Welf. & Inst. Code, 366. 26.)^[1] Father is not a party to this appeal. Mother contends the juvenile court's finding of adoptability is not supported by substantial evidence and the court failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). We affirm.

FACTS

Mother suffers from schizophrenia and post-traumatic stress disorder. She married father (N.T.) and gave birth to Noel. When Noel was one month old, mother experienced a psychotic episode and was hospitalized at a mental health facility. The following month, mother took Noel to a church and told the pastor that father had told her to kill the baby. She asked the pastor to baptize Noel and, when that request was denied, left her on a pew while she went into the bathroom and doused her hair with water. When mother returned, she pulled off one of several T-shirts she was wearing and wrapped Noel inside of it. She had previously been wrapped in a wet blanket.

The San Luis Obispo County Department of Social Services (department) took Noel into protective custody and filed a petition alleging that mother could not care for Noel due to her mental illness, that father had endangered Noel by leaving her in mother's care, and that father's whereabouts were currently unknown. Noel was placed in foster care in May 10, 2005.

In December 2005, Noel was diagnosed with cerebral palsy. She is delayed in the development of language and fine and gross motor skills and displays a rigid body posture, known as hypertonicity. She also suffers from mild respiratory distress syndrome, bronchiolitis and asthma.

Dispositional Hearing

After a jurisdictional hearing, the trial court found the allegations in the petition true, and set the matter for a dispositional hearing. A psychological evaluation of mother was submitted by Jeanne Sterling, Ph.D. She wrote that "Noel is an infant who has neurodevelopmental deficits. Her rigid body posture and emaciated appearance suggest a number of problems. She needs expert care and a rigorous diet of environmental stimulation. She is beginning to receive help from Tri-Counties Regional service[,] however prescribed interventions need to be continued on a daily basis by Noel's caregiver. [Mother] is unable to provide this special care at the present. Since Noel will most certainly require continued interventions throughout her development, her care may become even more difficult. []  In terms of emotional safety, Noel is in the process of forming an attachment . . . . [She] is clearly tuned-into [sic] and attached to her foster mother." Both Dr. Sterling and another psychologist, along with the department, recommended that reunification services be denied.

The foster parents requested the court to grant them de facto parent status. They filed a declaration indicating that they were licensed foster parents trained for special needs and high risk children. They stated that they were "ready, willing, and able to adopt Noel" if she was not reunited with her parents. The foster mother was a "full-time parent" who attended all of Noel's appointments, received individualized instruction to address Noel's developmental delays and performed a detailed therapeutic routine daily with her.

At the dispositional hearing, the court ordered a bypass of family reunification services ( 361.5, subd. (b)), based on a finding that mother suffered a mental disability rendering her incapable of utilizing reunification services in the time allowed. It set the matter for a section 366.26 hearing. The foster parents were granted de facto status. Mother sought an extraordinary writ to vacate the trial court's order denying reunification services, which was denied.

Contested Placement Hearing

Noel's maternal great aunt and uncle, who live in Texas, were willing to adopt her. They were approved for placement and the department recommended moving Noel to their home. Noel's attorney and the de facto parents objected to the move and the matter was set for a contested hearing on Noel's placement. The placement hearing spanned two days and focused almost entirely on the subject of child and caretaker attachment. The public health nurse, occupational therapist, social worker and Dr. Sterling all testified that disturbing the attachment Noel has developed with her foster mother would be severely damaging to the child, particularly in light of her special needs and difficulty bonding.

Dr. Sterling testified that "[m]y concern is that Noel needs a caretaker who understands her condition and also understands that while she's a darling little baby now and relatively easy to take care of, as she grows and develops and has cerebral palsy, she's going to face many, many difficulties. []  And as children get older, they're not quite as cute anymore. Their strained parents have to advocate for them or caretakers have to advocate for them to get services through the school, to get friends, it's a huge job. And yes, I have concerns because it gets more and more difficult, not less difficult." The court found that it would not be in Noel's best interest to remove her from her foster parents' home.

Contested Section 366.26 Hearing

The report prepared for the section 366.26 hearing indicated that Noel was suffering from a chronic ear infection and was scheduled to have tubes placed in her ears temporarily to promote healing. Her pediatric neurologist noted that "[w]hen the foster family took custody of Noel she was very irritable, crying almost 16 hours per day and very stiff. She has gradually improved since that time but is still hypertonic. She has made tremendous developmental progress" since her placement in foster care. Noel's occupational therapist indicated that she "continues to experience significant developmental delays in language, fine and gross motor skills," however she is "extremely comfortable with her family and is thriving from the attention she receives from the other [three] children and her (foster) parents."

Noel's "early interventionist" stated that she "continues to display sensory defensiveness and rigidity and extension patterns due to cerebral palsy." Noel "'gets excited' when her foster siblings enter the room . . . [and] displays an attachment to her foster mother and shows a dislike for certain places or people. She accepts hugs and kisses, but does not yet give them. . . .  [She] also becomes easily over-stimulated in new environments or with new people and 'shuts down' to avoid these situations." The report indicated that Noel's foster parents have been identified as prospective adoptive parents.

The social worker concluded that, since Noel's detention, "she has received the care and nurturing necessary to aid her in her physical and emotional development . . . .  Her diagnosis of Cerebral Palsy indicates that she will continue to need specialized care and her needs must be closely monitored if she is to continue in her progress and reach her full potential."

At the section 366.26 hearing, the adoptions social worker testified that Noel was adoptable. Mother's counsel inquired whether any families, other than the de facto parents, had expressed a willingness to adopt Noel. The social worker responded, "[I] believe if the current foster parents did not want to adopt Noel we would still have several families that would be interested." She testified that the foster parents "already have an approved adoption home study on file. If not, I believe they would have no difficulty passing a home study."

Mother made an offer of proof that she would testify she does not want her parental rights terminated. If her daughter were to be adopted, she would like the maternal aunt and uncle to be the adoptive parents. Mother's offer of proof was accepted by all parties. The court found by clear and convincing evidence that Noel was likely to be adopted and ordered parental rights terminated.

DISCUSSION

Adoptability Findings

Mother acknowledges that Noel was in a prospective adoptive home, but argues the adoptability finding was not supported by substantial evidence because there was no showing that the prospective adoptive parents had "an approved adoptive home study" or been approved for adoption. She also contends Noel's medical conditions "precluded her from being considered generally adoptable should the current prospective adoptive placement fail." Mother asserts that, although the social worker testified that other families "would be interested" in adopting Noel, no further information was offered about those families.

If a child is adoptable, the court must terminate parental rights and select adoption as the permanent plan unless one of five statutory exceptions apply. Before terminating parental rights, a juvenile court must find by clear and convincing evidence that a minor will be adopted within a reasonable time. ( 366.26, subd. (c)(1); In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153; In re Erik P. (2002) 104 Cal.App.4th 395, 400.)

The issue of adoptability focuses on the minor, and whether his or her age and physical and emotional condition may make it difficult to find an adoptive home. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Adoptability concerns the minor's general suitability for adoption rather than the suitability of the prospective adoptive family, or the existence of such a family. ( 366.26, subd. (c); In re Josue G. (2003) 106 Cal.App.4th 725, 733; In re Brian P. (2002) 99 Cal.App.4th 616, 624; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) "'[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.' [Citation.]" (In re Asia L. (2003) 107 Cal.App.4th 498, 510, italics omitted.)

The trial court did not err in finding Noel adoptable. When she was first detained, she cried almost 16 hours per day, exhibited a very rigid body posture and was easily distressed by sound or touch. Noel has made tremendous developmental progress since her placement in foster care and is thriving in her foster family. She now displays an attachment to her foster mother and is able to accept her affection. The record is replete with the statements of those who work most closely with Noel that she has received the care and nurturing necessary to aid her in her physical and emotional development. The department's permanent-plan report indicated that the prospective adoptive parents, who were also the de facto parents, wanted to adopt Noel. We recognize that, due to Noel's diagnosis of cerebral palsy, she is a child who will continue to need specialized care. However, contrary to mother's argument, Noel's medical condition does not render her unadoptable.

Mother cites no authority for her argument that a child may not be found adoptable unless a home study has been completed and the prospective adoptive family has been approved for adoption. The statute provides that "[t]he fact that the child is not yet placed in a pre-adoptive home nor with a relative or foster family who is prepared to adopt the child, shall not constitute basis for the court to conclude that it is not likely the child will be adopted." ( 366.26, subd. (c)(1).) The statute does not require approval of a home study before the court can find the child adoptable and terminate parental rights. We also reject mother's argument there were no families identified that were willing to adopt Noel. Mother's maternal aunt and uncle in Texas were diligent in their efforts to have Noel placed with them, and their home study had been approved.

Mother erroneously relies on section 366.26, subdivision (c)(3)^[2]to argue that Noel is not a likely candidate for adoption. Under this subdivision, a court may identify adoption as the permanent placement goal without terminating parental rights where a child is found to be difficult to place for adoption. (Ibid.) The statute is inapplicable to the facts before us, where there are prospective adoptive families willing to adopt Noel. We need not consider the authorities mother cites in support of this argument. Substantial evidence supports the termination order.

Compliance with the ICWA

Mother next contends that juvenile court failed to ensure compliance with the ICWA notice requirements before proceeding with the section 366.26 hearing, thus the termination order must be reversed and the matter remanded. Mother claims the court did not have adequate information when it determined (1) the Agency was in compliance with the ICWA notice requirements and (2) that the Act was inapplicable to Noel.

The ICWA sets forth procedural and substantive standards regarding Indian children in state dependency proceedings. (In re H.A. (2002) 103 Cal.App.4th 1206, 1210.) The ICWA requires that "'[i]n any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.' (25 U.S.C. 1912(a).)" (Ibid.) In the event the identity or location of the Indian tribe cannot be determined, the moving party shall notify the Secretary of the Interior. (Id. at p. 1211.) The purpose of the notice is to allow the Indian tribe to determine the dependent child's Indian ancestry. (Id. at p. 1210.)

California recognizes the ICWA's notice requirements, both in statutes and by court rule. (See  290.1-297; Cal. Rules of Court, rule 5.664.) To satisfy the notice provisions of the ICWA and to provide a proper record for the juvenile court and appellate courts, the social services agency should follow a two-step procedure. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739, fn. 4.) First, it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Ibid.) Second, it should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status. If the identity or location of the tribe cannot be determined, the same procedure should be used with respect to the notice to the BIA. (Ibid.) Both the juvenile court and the county child welfare department have an affirmative duty to inquire about a child's Indian status whenever a section 300 petition is filed. (Cal. Rules of Court, rule 5.664(d); In re Desiree F. (2000) 83 Cal.App.4th 460, 470.)

At the detention hearing on May 13, 2005, mother indicated she had Cherokee Indian ancestry. On May 15, 2005, the department sent out the required notice in the form of the mandatory judicial council form, JV-135, "Notice of Involuntary Child Custody Proceedings for an Indian Child." The notices, along with a copy of the petition, were sent certified mail, return receipt requested, to all three federally recognized Cherokee tribes, the Bureau of Indian Affairs (BIA) and mother. The BIA received their notice on May 20, 2005. The Cherokee Nation and the United Keetoowah Band of Cherokee Indians received their notices on May 23, 2005. The return receipts for the Eastern Band of Cherokee Indians and for mother were filed with the court but not date stamped by the postal service.

The notices contained mother's name, address and birthplace. It identified father, listed him as homeless, included his birth date and birthplace in Cairo, Egypt. The maternal grandparents were listed with their birth dates and birthplaces, but their address was listed as unknown. The maternal great-grandmother was listed by name only. The form indicated that the paternal great-grandfather was a member of the Cherokee tribe. His dates and places of birth and death were identified. His mother was identified by name only and it was indicated that she belonged to the Cherokee tribe. Most of the remaining boxes were marked "unk" or "N/A" for not applicable.

Responses were received from the BIA and all three tribes, asserting there was no ICWA issue in the case. The Cherokee Center for Family Services responded by letter dated June 7, 2005 stating that, based on the information provided, Noel is not registered or eligible to register as a member of the Eastern Band of Cherokee Indians. The United Keetowah Band of Cherokee Indians responded by letter on June 17, 2005, that Noel was not descended from anyone on the Keetoowah Roll, and is therefore not eligible for enrollment. The Cherokee Nation also indicated that Noel could not be traced in their tribal records.

On August 30, 2005, the department made an offer of proof regarding ICWA compliance, detailing the dates the notices were issued and the responses received. There was no objection to the offer of proof. The court accepted it as evidence and took the ICWA under submission for an independent review.

The court found that the department had complied with the ICWA notice requirements. Notice to intervene had been provided by certified mail, return receipt requested, to mother, all three tribes and the BIA. Certified mail receipts from the mother and the foregoing entities were filed with the court. The court found by clear and convincing evidence that the department had complied with the ICWA's notice requirements and the tribes notified had declined intervention and denied eligibility for enrollment.

Mother argues that the information contained in the notice sent to each tribe was inadequate to allow a meaningful search of tribal records. She claims that the department gave insufficient information about Noel's mother and maternal grandparents. Mother asserts that only her name, current address, birth date and birthplace were provided; no former addresses or other identifying information was included. Mother notes that only the names, birth dates and birthplaces for the maternal grandparents were given. No information was provided about their address or other identifying information. Mother asserts that because the maternal grandmother had been an active participant in the dependency proceedings, her address could have been easily obtained from her directly, or through mother. Mother makes no claims that the paternal relatives, who are Egyptian, had American Indian heritage.

There is substantial evidence that the department satisfied the notice requirements and sent sufficient information to the identified tribes and the BIA. Mother's argument that it is "likely" that she and the maternal grandmother "could have provided other meaningful information" is merely speculative.

The judgment (order terminating parental rights) is affirmed.

NOT TO BE PUBLISHED.

COFFEE, J.

We concur:

GILBERT, P.J.

PERREN, J.

Theresa Estrada-Mullaney, Judge

Superior Court County of San Luis Obispo

______________________________

Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and Appellant.

James B. Lindholm, Jr., County Counsel, Leslie H. Kraut, Deputy County Counsel for Plaintiff and Respondent.

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

^[2]"[A] child may only be found to be difficult to place for adoption if there is no identified or available prospective adoptive parent for the child because of the child's membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more." ( 366.26, subd. (c)(3).)