In re T.W.

Filed 1/29/07 In re T.W. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. David Cohn, Judge. Affirmed in part, reversed in part, and remanded with directions.

Leslie A. Barry, under appointment by the Court of Appeal, for Defendant and Appellant Frank S.

Nicole Williams, under appointment by the Court of Appeal, for Defendant and Appellant Katrina S.

Ruth E. Stringer, Acting County Counsel, W. Andrew Hartzell, Chief Deputy County Counsel, and Danielle E. Wuchenich, Deputy County Counsel, for Plaintiff and Respondent.

Ellen L. Bacon, under appointment by the Court of Appeal, for Minors.

Katrina S. (Mother) appeals from the juvenile courts order terminating her parental rights to M. (born in 1998), J. (born in 2000), A. (born in 2003), and T. (born in 2004), pursuant to Welfare and Institutions Code section 366.26.^[1] Frank S. (Father) also appeals from the same order terminating his parental rights to J. On appeal, both parents challenge the finding that M. and J. are adoptable.^[2] They further contend the notice requirements for complying with the Indian Child Welfare Act (ICWA) were not satisfied as to J.

I. PROCEDURAL BACKGROUND AND FACTS

On September 13, 2000, the San Bernardino County Department of Childrens Services (the Department) detained M. and J. after it was learned that Mother had left them at home unsupervised. The paternal aunt found the children alone and crying. According to Mothers neighbor, Mother had a substance abuse problem. Mother denied such problem and was arrested for child endangerment. Father was reportedly incarcerated for aiding and abetting a fugitive.^[3] On September 19, the Department filed a dependency petition that alleged the children came within section 300, subdivisions (b) and (g), due to Mothers reported substance abuse as well as leaving the children unattended.

At the time of the detention report, the children were placed with the paternal aunt of J. The aunt, however, was willing to care for both children only until their maternal grandmother could be located and assessed for placement. At the detention hearing on September 25, 2000, the juvenile court found a prima facie showing, detained the children, and ordered a minimum of weekly, supervised visitation between Mother and the children upon her release from custody. Following the jurisdictional/dispositional hearing, the children were ordered detained with Mother on the condition that they reside in the maternal grandmothers home.

An amended detention report dated March 2, 2001, stated that the ICWA did not apply. In an addendum report filed on March 21, the Department recommended that family maintenance services continue to be provided for Mother and the children. On May 29, the juvenile court placed the children with Mother but they remained dependent children of the court. The matter was continued for a semiannual review.

In the status review report filed on November 19, 2001, the Department reported that Mother had given birth to a girl in May 2001; however, she had arranged for the childs paternal grandparent to have custody of her.^[4] Father had been located living on Navajo Street in Barstow. Again, the Department noted that ICWA did not apply. In August 2001, probation issued a warrant for Mothers arrest for noncompliance with her summary probation that required her to complete a parent education program. At an unannounced visit, the social worker discovered that Reggie S. was present. One of his conditions of parole was that he have no contact with Mother or the children. He had been released from prison in April 2001, but returned by the time of the Departments report.

Mother did not believe she needed the services of the Department even though she had failed some drug tests and had not completed her substance abuse program. Mother also did not see Reggie S. as a threat to the children despite the fact that one of his conditions of parole was to have no contact with Mother and the children. The Department also received reports that Mother had left her young children unattended at a hospital waiting room and in front of the familys apartment. In the January 8, 2002, addendum report, the Department noted that Mother had failed to drug test before December 31, 2001. She remained unemployed and her home was without gas. According to the social worker, Mothers efforts to complete her services had been marginal. On January 8, 2002, the juvenile court continued family maintenance to July.

On May 1, 2002, Mother went to the Departments office to have a sweat patch applied. The patch came back with a positive result for methamphetamine. The social worker asked Mother to submit to drug tests on June 4 and 6, 2002. Mother failed to test on both occasions. The social worker observed that although Mother had positive drug test results, she has not demonstrated leading a drug dependant [sic] lifestyle. Finding appropriate bonding and interaction between Mother and the children, the Department recommended that the children remain in her home and that the dependency be dismissed. Fathers whereabouts were unknown for a while; however, he was located allegedly in Barstow.

At the July 8, 2002, hearing, the juvenile court continued the children in Mothers custody, ordered that family maintenance services continue, and scheduled another semiannual review hearing for January 8, 2003.

As of January 8, 2003, the children remained placed with Mother in Barstow. Mother tested positive for marijuana on November 20, 2002. All other tests were negative. However, Mother gave birth to her fourth child, A., in January 2003, and both tested positive for amphetamines while at the hospital. Mother admitted to the social worker that she had been using methamphetamines during the past year and other illegal substances during the last few months of her pregnancy.

On January 21, 2003, a dependency petition was filed alleging that A. came within section 300, subdivisions (b), (g), and (j). The Department recommended that A. remain placed with Mother, but that A. be made a dependent of the juvenile court and that Mother be ordered to participate in further family maintenance services. On January 24, the court ordered that the children remain with Mother, that Mother continue in her outpatient drug program, and that the Department should remove the children in the event Mother tested positive for drugs.

On February 24, 2003, the juvenile court found that A. came within section 300, subdivisions (b), (g), and (j). The child was declared a dependent of the court and she, along with Mothers other children, were ordered to be maintained with Mother. A semiannual review was set for August 25.

On June 27, 2003, the Department filed section 387 petitions on behalf of the children. Mother had tested positive for methamphetamines on February 19 and March 5, 2003. Mother failed to drug test as requested by the Department, and she missed several sessions at Oasis Counseling Center, resulting in her termination. Mother also refused to return the social workers calls regarding mothers service plan. Again, it was noted that ICWA did not apply.

The detention hearing on the section 387 petitions was held on June 30, 2003. The juvenile court removed the children from Mother and placed them in temporary custody. Mother was allowed weekly, supervised visitation.

The jurisdiction/disposition report of July 21, 2003, recommended that the children be placed in out-of-home care with family reunification services. The recommended reunification services included a parent education program, an inpatient substance abuse program, a 12-step program, substance abuse testing, and an outpatient substance abuse program. The hearing was held on August 11, 2003. Mother did not appear. The juvenile court found the allegations of the supplemental petition true, ordered the children removed from her care and placed with the maternal grandmother, and ordered Mother to participate in family reunification services. The case was transferred to Victorville and an 18-month review hearing was set for February 6, 2004.

The Department filed a status review report dated February 6, 2004, recommending that Mothers services be terminated and a section 366.26 hearing be set. The maternal grandmother was willing to adopt the children. Mother was pregnant with her fifth child and claimed to be drug free; however, she had never submitted to a blood test or provided proof of drug testing. Mother continued to deny that she was a substance abuser. Despite numerous family maintenance and reunification services, Mother had not been rehabilitated. The Department had no information about Father other than the fact that he was identified as J.s father and the father of Mothers unborn child.

Mother gave birth to a baby girl, T., in January 2004. Mother named Reggie S. as T.s father. On March 19, 2004, a dependency petition was filed alleging that T. came within section 300, subdivision (b) and (j). On March 22, the juvenile court ordered T. detained and continued the matter for a jurisdictional/dispositional hearing. The maternal grandmother agreed to care for T. and she was willing to adopt her.

An addendum report dated March 19, 2004, recommended that Mothers services be terminated and a section 366.26 hearing be set. At the pretrial settlement conference on May 28, Mother agreed with the recommendation to terminate services regarding M., J., and A., and the court set a section 366.26 hearing to determine a permanent plan for them. She also agreed that T. would be detained and she would be provided reunification services. Thus, the court terminated reunification services as to all children with the exception of T., and set a section 366.26 hearing. The visitation order remained weekly and supervised.

In the interim review report filed on July 7, 2004, the Department reported that an address and phone number had been located for Father on May 26. Father was subsequently contacted by the social worker and confirmed his address on Cholla Drive in Barstow. Again, the report noted that ICWA did not apply. By September 2004, Fathers whereabouts were again unknown.

At the November 19, 2004, six-month review hearing for T., the juvenile court ordered that she be continued as a dependent and that reunification services be terminated. A section 366.26 hearing was scheduled for March 18, 2005.

Father appeared for the first time at the hearing on January 13, 2005, along with the paternal grandmother. Counsel was appointed to represent him. Father asked for discovery from the beginning of the case, and he contested the section 366.26 hearing set for January 27, 2005.

On January 27, 2005, Father claimed that his great-great-grandmother was Indian, but he did not know her name or the tribe. He did testify that his grandmother, Ester J., was the only relative who would have any information. Father provided Ester J.s contact information and the juvenile court asked that she be contacted in order to find out if she had more information. The section 366.26 hearing was continued.

On January 28, 2005, the Department sent notice of the proceedings to the Bureau of Indian Affairs (BIA). Although Father provided Ester J.s contact information, the notice listed Ester J. as paternal great-grandmother, with unknown written as to birth date, place of birth, tribe and band. The notice also listed Poppy W. as a Great, Great, Great, Great, Great Grandfather of child, with a possible place of birth in Louisiana, and a possible place of death in Texas. No other paternal relative information was provided.

On February 8, 2005, Father filed a section 388 petition. He claimed that he was never served with a notice of the dependency hearing regarding his son, J.,^[5]and he requested that the child live with him. In response, the Department recommended that the petition be denied because Father had been noticed of several hearings, and Mother and maternal grandmother reported that he only had a few visits with J.

On February 16, 2005, J. told the social worker that he would like to live with Mother, Father, or his grandmother. M. drew a picture of his family and it was of only one person, his grandmother. According to the grandmother, both J. and M. referred to her as Mommy.

On February 22, 2005, the juvenile court denied Fathers section 388 petition.^[6] In doing so, the court found that the Department had exercised due diligence in trying to locate Father for the original jurisdiction hearing and that he received actual notice beginning June 2002 and did not appear until January 2005. The court also found that the notice sent to the BIA complied with ICWA.^[7]

The Department filed section 387 supplemental petitions on behalf of the children on March 18, 2005. There were questions regarding the maternal grandmothers ability to supervise the children. Subsequently, the juvenile court removed the children from the maternal grandmothers care and placed them in confidential foster care. As to paternity, Father asked to be found to be J.s biological father and the court so found.

In the status review report dated August 22, 2005, the Department asked that a section 366.26 hearing be set to establish a permanent plan of adoption for all of the children. They had been in the same placement since March 16, 2005, and were doing well. They were bonded to their foster parent and referred to her as mom. The foster parent wished to adopt all of the children. Neither Mother nor Father were taking advantage of their visitation rights; Mother reported that she had no transportation, and Father never contacted the Department to arrange visitation. On September 22, 2005, the juvenile court found that the permanent plan of long-term foster care was no longer appropriate and set a permanency planning hearing.

On October 4, 2005, Father attended mediation with the prospective adoptive parent. They agreed that Father would have liberal post-adoption contact with J., including unsupervised visits. The interim review report of November 2, 2005, recommended that a section 366.26 hearing be set to establish a permanent plan of adoption. Mothers whereabouts had been unknown, but she was eventually located and noticed of the upcoming hearing.

A February 9, 2006, addendum report recommended that the parental rights of Father and Mother be terminated and that adoption be implemented as the permanent plan. M. and J. acted out aggressively and sexually; M.s actions were worse than J.s. This caused the foster mother concern as to whether she should adopt M. After the social worker explained that the Department has postadoption services in order to assist her, she then focused on the small improvements that [M. had] made since being in therapy. The foster mother indicated that she was aware of M.s and J.s relationships with their fathers and was open to postadoption contact so that they could grow up knowing their biological fathers.

The section 366.26 report of May 26, 2006, recommended that all of the children receive permanency planning services from County Adoption Services, that parental rights be terminated, and that the permanent plan of adoption be implemented. The report also noted that Mothers contact with the children was irregular, and there had been no in-person contact among Mother and the children since December 2005.

In a report dated July 14, 2006, the Department again recommended termination and adoption. On December 7, 2005, Father had been arrested for possession of a controlled substance for sale. He pled guilty and received a sentence of three years in state prison. At the pretrial settlement conference on July 14, 2006, Father waived his right to be present at the contested section 366.26 hearing, and he was immediately sent to state prison.

Neither Mother nor Father appeared at the section 366.26 hearing on July 17, 2006. Counsel for both Mother and Father objected for the record; however, neither presented affirmative evidence. The court determined adoption to be the permanent plan for all of the children and terminated all parental rights. Both Mother and Father appeal.

II. ADOPTABILITY

Both Mother and Father contend there was insufficient evidence that J. and M. were adoptable.

J. was described as a troubled five-year-old boy who exhibited symptoms of anxiety and depression. He also exhibited avoidance behaviors, aggressive acting out, and sexualized behaviors. J. lacked age-appropriate social skills with his peers and was oversensitive and manipulative with adults. He had difficulty bonding with his foster mother and required therapy to stabilize his foster placement in addition to treating his other behavioral problems. It was believed that he would need ongoing therapy for a while. Nonetheless, his foster mother was interested in adopting him.

M. was in therapy in order to deal with issues of past sexual abuse, and he also had issues with touching his sister, as well as impulsiveness, marked defian[ce], argumentative, angry/aggressive acting out behaviors (with lack of remorse), agitation, hyperactivity, inattention, anxiety, difficulties sleeping and concentrating, grief, loss, and abandonment issues. Most significant of M.s many different issues, was his lack of attachment. His therapist opined that M. would require therapy for a markedly long period of time.

The juvenile court cannot terminate parental rights unless it finds, by a clear and convincing standard, that it is likely the child will be adopted . . . . ( 366.26, subd. (c)(1).) Review of a determination of adoptability is limited to whether those findings are supported by substantial evidence. [Citation.] (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061.) [W]e view the evidence in the light most favorable to the trial courts order, drawing every reasonable inference and resolving all conflicts in support of the judgment. [Citation.] An appellate court does not reweigh the evidence. [Citation.] (In re Marina S. (2005) 132 Cal.App.4th 158, 165.)

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; accord, In re Angelique C. (2003) 113 Cal.App.4th 509, 519; In re Mark L. (2001) 94 Cal.App.4th 573, 580-581.)

The issue of adoptability . . . focuses on the minor, e.g., whether the minors age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] [Citation.] (In re Zeth S. (2003) 31 Cal.4th 396, 406, quoting In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors 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 parents 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 Gregory A. (2005) 126 Cal.App.4th 1554, 1562.)

Here, M.s and J.s current foster parent wanted to adopt them. She was fully aware and informed of their psychological and emotional health. She was initially hesitant about adopting M. because she was not sure that she could take care of all of his needs by herself; however, after the social worker assured her that there were postadoption services available to her, she was committed to the adoption. The adoption assessment report described the age, physical health, and emotional and psychological development of the children. It clearly identified the conditions of M.s and J.s emotional and mental health issues, and their need for ongoing therapy. The report fully informed the court of the status, needs and progress of each child, and the desire of the foster mother to adopt the children. The report was dated February 9, 2006. An addendum report was dated July 14. As the Department notes, in that short period of time, M., who had initially not attached to his prospective adoptive mother, began referring to her as mom and developed a bond with her and his siblings. Both M. and J. had made progress in therapy. They were happy and comfortable in their foster home.

Notwithstanding the above, parents cite to three cases and argue that the facts in this case are analogous to those cases. As the Department points out, the respective emotional states of M. and J. are of significantly less concern than those of the children in In re Asia L. (2003) 107 Cal.App.4th 498, which both parents cite as being factually similar. In that case, the appellate court reversed the juvenile courts finding of adoptability because the childrens emotional and psychological development presented a potential obstacle to adoption. The child James was described by his therapist as the most hyperactive child she has ever seen, and in need of medication, and by his teacher as in need of constant supervision and is often out of control in the classroom to the point that he may not be able to be maintained in the classroom. (Id. at pp. 510, 511.) The child Asia was described by her therapist as hyperactive, steals, lies, hoards material items not food, aggravates other children, and pulls her braids out of her head when upset. (Id. at p. 511.) Asias social worker recommended that she be put in specialized placement where the parents were experienced in dealing with a hyperactive child. (Ibid.) Here, neither of the children needs medication to control behavior, nor do the children require specialized placements.

Both parents also cite In re Brian P. (2002) 99 Cal.App.4th 616, for the proposition that there was insufficient evidence of adoptability. However, their reliance on that case is misplaced. In In re Brian P., the appellate court found that the lower court erred in finding that the child was adoptable because there was no assessment report that would have provided the support needed to make such finding. The facts in the record were fragmentary and ambiguous and said nothing about the childs adoptability or his likelihood of adoption. (Id. at pp. 624-625.) Likewise, we find the parents reliance on In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205, for the proposition there was insufficient evidence of adoption, to also be misplaced. In In re Jerome D., the court held that the willingness of the childs stepfather to adopt the child was insufficient to establish adoptability because the adoption assessment did not address the childs prosthetic eye, which required care and treatment, or the stepfathers criminal and Child Protective Services (CPS) history. He had been convicted of domestic violence and listed as a CPS perpetrator for abusing his nephew and niece. (Id. at p. 1205.)

Based on the above, we conclude that the finding of adoptability was supported by substantial evidence.

III. ICWA

Both parents contend that the ICWA notice requirements were not satisfied as to J. Respondent concedes.

In 1978, Congress enacted ICWA, which allows an Indian tribe to intervene in dependency proceedings, to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. [Citation.]

ICWA sets forth specific notice requirements: [W]here 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 Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. [Citation.]

If the tribes identity cannot be determined, notice must be given to the BIA. [Citation.] The Indian tribe determines whether the child is an Indian child. [Citation.] A tribes determination that the child is or is not a member of or eligible for membership in the tribe is conclusive. [Citation.]

Notice must be sent when there is reason to believe the child may be an Indian child. [Citation.] [T]he juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citation.]

ICWA notice requirements are strictly construed. [Citation.] The notice sent to the BIA and/or Indian tribes must contain enough information to be meaningful. [Citation.] The notice must include: if known, (1) the Indian childs name, birthplace, and birth date; (2) the name of the tribe in which the Indian child is enrolled or may be eligible for enrollment; (3) names and addresses of the childs parents, grandparents, great grandparents, and other identifying information; and (4) a copy of the dependency petition. [Citation.] To enable the juvenile court to review whether sufficient information was supplied, Agency must file with the court the ICWA notice, return receipts and responses received from the BIA and tribes. [Citation.]

It is essential to provide the Indian tribe with all available information about the childs ancestors, especially the ones with the alleged Indian heritage. [Citation.] Notice to the tribe must include available information about the maternal and paternal grandparents and great-grandparents, including maiden, married and former names or aliases; birthdates; place of birth and death; current and former addresses; tribal enrollment numbers; and other identifying data. [Citation.] (In re Francisco W. (2006) 139 Cal.App.4th 695, 702-703.)

Here, Father indicated that he had been told by his grandmother, Ester J., that his great-great-grandmother had Native American heritage. However, Father was never required to complete Judicial Council form JV-130, Parental Notification of Indian Status, at either his first appearance or at his second appearance where he was asked about Indian ancestry. As of January 1, 2005, the juvenile court was required to order the parent to complete form JV-130 at their first court appearance. (Former Cal. Rules of Court, rule 1439(d)(3).^[8]) Likewise, the Department failed to obtain all possible information about J.s Indian ancestry. (In re Louis S. (2004) 117 Cal.App.4th 622, 630.) Although the Department sent notice to the BIA, there is nothing in the record that shows the Department interviewed any paternal family members. The notice does not include the name of the paternal grandmother, nor does it include any information about the paternal great-grandmother, other than her name. There is thus no record that the proper forms with the proper, specifically-required information, were sent to the proper Indian authorities. Indeed, the Department concedes error.

The failure to demonstrate compliance with ICWA notice provisions necessitates only a limited reversal, however. 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. (In re Francisco W., supra, 139 Cal.App.4th at p. 708.)

IV. DISPOSITION

Substantial evidence supported the juvenile courts determination that the children were adoptable. The failure to comply with ICWA notice provisions, however, requires a limited reversal.

The judgment terminating parental rights as to J. only is reversed, and the case is remanded to the juvenile court with directions to order the Department to comply with the notice provisions of ICWA and the relevant case law interpreting ICWA. The Department is also to file all required documentation with the juvenile court for the courts inspection. Once the juvenile court finds there has been substantial compliance with the notice requirements of the ICWA, it shall make a finding with respect to whether the child is an Indian child. (See former Cal. Rules of Court, rule 1439(g)(5).^[9]) If, at any time within 60 days after notice has been given, there is a determinative response that the child is or is not an Indian child, the juvenile court shall find in accordance with the response. (Former Cal. Rules of Court, rule 1439(g)(1), (4).^[10]) If there is no such response, the juvenile court shall find that the child is not an Indian child (Former Cal. Rules of Court, rule 1439(f)(6)^[11]), and the judgment terminating parental rights shall be reinstated. In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

MCKINSTER

J.

RICHLI

J.

Publication courtesy of California pro bono lawyer directory.

Analysis and review provided by Chula Vista Property line Lawyers.

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

^[2]As counsel for the children points out, neither parent has asserted error in the trial courts termination of parental rights as to A. and T. Moreover, the presumed father of A. and T. and the alleged father of T. have not appealed.

^[3]The presumed father of M., Reggie S., was also incarcerated for, among other things, assault with a firearm on a person and willful cruelty to a child with intent to harm (Reggie gave M. a gun and told him to put it in J.s mouth).

^[4]This child is not a subject of the appeal.

^[5]Mother also informed the court that Father was J.s biological father and that there was a judgment of paternity and a child support order dated August 21, 2001. The court located a stipulated judgment of paternity dated September 14, 2001, from Victorville.

^[6]Father filed a notice of appeal on February 23, 2005, challenging the denial of his section 388 petition; however, the appeal was eventually dismissed without Father being appointed counsel.

^[7]Attached to the section 366.26 report was notice provided to BIA regarding J. The notice identified Mother and Father, and their current addresses. The paternal great-great-great-great-great-grandfather was identified by name with a possible birthplace of Louisiana and the paternal great-grandmother, Ester J., was only identified by name. Certified mail receipts were not included; however, the return receipt was included indicating the BIA received the notice on January 31, 2005.

^[8]Now California Rules of Court, rule 5.664(g)(5).

^[9]Now California Rules of Court, rule 5.664(g)(5).

^[10]Now California Rules of Court, rule 5.664(g)(1), (4).

^[11]Now California Rules of Court, rule 5.664(f)(6).