In re Z.F.

Filed 7/3/07 In re Z.F. CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

THIRD APPELLATE DISTRICT

(Nevada)

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Appellant, the mother of the minors, appeals from the juvenile courts order terminating her parental rights. (Welf. & Inst. Code, 366.26, 395.)^[1] Appellant claims there was insufficient evidence to support the juvenile courts finding that the minors were adoptable. She also maintains the matters must be remanded for the juvenile court to make a finding

whether the Indian Child Welfare Act (ICWA) applies. (25 U.S.C. 1901 et seq.) We shall remand the matter for compliance with the ICWA and, otherwise, affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2003, a dependency petition was filed in Placer County concerning 13-month-old K.H., alleging in part that appellant, who was pregnant, had a substance abuse problem rendering her unable to provide appropriate care for the minor. The petition also alleged that appellant had another child who had been adopted following appellants failure to comply with court-ordered treatment for substance abuse.

By the time of the jurisdictional hearing, K.H. had been placed with the maternal grandmother, who had adopted appellants other child. In May 2003, the juvenile court sustained the allegations in the petition and ordered reunification services for appellant.

In October 2003, appellant gave birth to Z.F., who initially resided with appellant at a womens center. Appellant continued to progress in treatment and, in February 2004, K.H. reunified with appellant.

In June 2004, petitions were filed concerning the minors based on an allegation that appellant had submitted a positive test for methamphetamine. However, the petitions were dismissed because the sample was insufficient to confirm the positive test.

Appellant again tested positive for methamphetamine in November 2004, resulting in the filing of a dependency petition concerning Z.F. The juvenile court sustained the allegations in the petition, ordered Z.F. placed with appellant and ordered appellant to participate in residential treatment.

Appellant completed a residential treatment program and appeared to have made great progress. The minors matters were transferred to Nevada County, where appellant had moved.

Appellant relapsed twice in July 2005. In October 2005, supplemental petitions were filed by the Nevada County Human Services Agency (HSA) after appellant tested positive for methamphetamine three more times and had stopped complying with her outpatient program. The minors were placed with the maternal grandmother, who was willing to adopt them. In December 2005, appellants services were terminated and a hearing was set to select and implement a permanent plan for the minors.

An adoption assessment concluded that the minors were adoptable. They were in good health, and their mental and emotional status was described as good. Z.F. was developmentally on target and was a well-behaved toddler. However, K.H. was exhibiting speech delays and had difficulty retaining information[,] possibly indicative of a developmental disability.

According to the adoption assessment, there were concerns about the maternal grandmothers viability as an adoptive placement because she had health-related issues and was under a doctors care. However, the minors had substantial emotional ties to their birth relatives. Consequently, the matter was continued to further assess the maternal grandmother and other relatives for adoption.

Subsequently, various difficulties emerged in the placement with the maternal grandmother, and she agreed that another adoptive home should be located for the minors. As no other relatives had requested consideration, a nonrelative adoptive home was being sought.

Meanwhile, a relative had suggested that the minors could benefit from counseling due to some emotional displays they were demonstrating. In addition, the Headstart program reported that K.H. become[s] impulsive and explosive at times, while at others he becomes sad and cries while at school. Nonetheless, the minors continued to be assessed as adoptable.

At the section 366.26 hearing, appellant [s]ubmitted on the report. The juvenile court found by clear and convincing evidence that the minors were likely to be adopted and ordered parental rights terminated.

DISCUSSION

I

Appellant contends the evidence was insufficient to support a finding that the minors were adoptable. We disagree.

Initially, we note that, while a parent need not object to preserve the issue of adoptability on appeal [w]hen the merits are contested [at a section 366.26 hearing] (In re Brian P. (2002) 99 Cal.App.4th 616, 623) (Brian P.), here, appellant merely submitted on the social workers report. Thus, a persuasive argument could be made that appellant has forfeited the issue of adoptability for purposes of appeal.

In any event, there was ample evidence that the minors were adoptable.

In order for the court to select and implement adoption as the permanent plan, it must find, by clear and convincing evidence, the minor will likely be adopted if parental rights are terminated. (In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164; 366.26, subd. (c)(1).) The issue of adoptability posed in a section 366.26 hearing 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.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent waiting in the wings. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)

We review an order terminating parental rights for substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) On review of the sufficiency of the evidence, 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. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.)

In the present matter, at the time of the section 366.26 hearing, the minors were both under four years old, an age at which children are generally adoptable. Although some developmental concerns had emerged about K.H., there was nothing in the social workers reports or the adoption assessment to indicate these concerns might pose an obstacle to adoption. To the contrary, both agencies assessed the minors as adoptable with an awareness of these concerns. Neither appellant nor any other party advocated for a contrary conclusion at the section 366.26 hearing.

Appellant maintains that the minors bond with their biological relatives posed an obstacle to their adoption. Section 366.26, subdivision (c)(1), enumerates exceptions to adoption based on a childs relationship with parents (subd. (c)(1)(A)), relative caretakers (subd. (c)(1)(D)) and siblings (subd. (c)(1)(E)), but the party claiming one of these exception has the burden of proof to establish that the exception applies. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) Appellant did not claim that an exception to adoption applied at the section 366.26 hearing and may not do so for the first time on appeal. (See In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252.)

Appellant analogizes the minors circumstances to cases in which appellate courts have reversed a finding of adoptability because a potential impediment to adoption was not adequately considered by the juvenile court. For example, In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205 (Jerome D.) involved an eight-year-old child whose adoptability was premised on the willingness of the mothers former boyfriend to adopt him. As the assessment of the boyfriend did not address factors such as criminal record and child protective services history, the appellate court concluded there was insufficient evidence to support adoption. In contrast, the conclusion that the minors were adoptable, here, was not dependent on the willingness of a particular individual to adopt them.

In re Brian P., supra, 99 Cal.App.4th 616, 625, involved a four-and-one-half year old with a history of developmental difficulties. The child had made recent progress as of the time of the section 366.26 hearing, but he continued to exhibit delays. Although the reports prepared for the hearing stated that the child was adoptable, they contained no evidence to support this conclusion, and the appellate court determined that [t]he facts about [the childs] age, physical condition, and emotional state that can be gleaned from th[e] record raise as many questions as assurances about his adoptability. (Id. at pp. 624-625.) The court concluded that the fragmentary and ambiguous evidence was not enough to buttress the Agencys position that [the child] was adoptable. (Id. at p. 625.) Unlike Brian P., here, the social workers reports throughout the proceedings chronicled the minors development and were replete with information supporting their adoptability. Furthermore, the adoption assessment addressed the minors physical, mental and emotional health, as well as their developmental status.

Appellant asserts that the minors bond with the maternal grandmother and concerns about K.H.s behavior were impediments to adoption. But, as we have already addressed, appellant has forfeited a claim that the minors bond with the grandmother constituted an exception to adoption. And while it is true that K.H. had begun to manifest some potential developmental and behavioral problems, nothing in the record suggests that these problems were of such magnitude that they might present an obstacle to adoption. It is not particularly significant that an adoptive home had not been identified for the minors as of the section 366.26 hearing, because the need to locate an alternative to the maternal grandmother arose only shortly before the hearing.

In sum, to the extent that K.H. may have some special needs, there is no evidence in the record that these presented an impediment to adoption. To the contrary, the evidence concerning the minors qualities supports the juvenile courts conclusion that they are adoptable.

II

Appellant claims the juvenile court erred by failing to make a finding concerning the application of the ICWA. HSA contends the error was harmless but that remand is necessary because notice was not provided to the correct tribe. Although we conclude the record is inadequate to resolve appellants contention, we shall accept HSAs concession and remand the matter for proper notice in compliance with the ICWA, as explained herein.

The ICWA was enacted to promote the stability and security of Indian tribes and families by establishing minimum standards for removal of Indian children from their families and placement of such children in homes which will reflect the unique values of Indian culture . . . . (In re Levi U. (2000) 78 Cal.App.4th 191, 195; 25 U.S.C. 1902; Mississippi Choctaw v. Holyfield (1989) 490 U.S. 30 [104 L.Ed.2d 29].)

Among the procedural safeguards included in the ICWA is a provision for notice, which states in part: In 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 childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (25 U.S.C. 1912(a).) The Indian status of a child need not be certain or conclusive to trigger the ICWAs notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.)

In the present matter, both the minute order from the detention hearing and the social workers jurisdictional report stated that appellant might have Cree Indian heritage. Notice was sent to four tribes: the Alabama-Quassarte, the Kialegee Tribal Town, the Poarch Band of Creek Indians, and the Muscogee Creek Nation.^[2] Three of the tribes responded that the minor was not registered or eligible to register as a member.

Although the jurisdictional report stated that notices sent to the Cree Indian Tribes and the Bureau of Indian Affairs (BIA) were attached to the report, the only notices accompanying the report were to the same four tribes previously noticed (the Alabama-Quassarte, the Kialegee Tribal Town, the Poarch Band of Creek Indians, and the Muscogee Creek Nation). Subsequently, reports from the social services agency in Placer County stated that the ICWA did not apply.

An initial hearing report in Nevada County concerning Z.F. again indicated that the ICWA might apply. The record reflects that notice of the proceedings was sent to the Creek Band--Kialegee Tribal Town and the Creek Band--Thiopthlocco Tribal Town.^[3] The Thlopthlocco Tribal Town responded that Z.F. was not enrolled or eligible for enrollment. Subsequent reports in Nevada County indicated that the ICWA did not apply. However, the adoption assessment noted that appellant has Creek Indian heritage and that the ICWA may apply.

Appellant contends the juvenile court erred by failing to make a determination whether the ICWA applied to the minors. Because the appellate record does not contain reporters transcripts of numerous hearings that took place in Placer County following the disclosure of information concerning appellants alleged Indian heritage in March 2003, we are unable to ascertain whether the juvenile court in fact failed to find whether the ICWA applied to the minors. In any event, even if the juvenile court did not make an ICWA finding, any error must be deemed harmless here. (In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1413-1414.)  This is because, assuming the content and timing of the notices were proper and that they were sent to the appropriate entities, the negative responses and lack of response from the tribes were sufficient to establish that the ICWA did not apply. (In re Levi U. (2000) 78 Cal.App.4th 191, 199.)

Nonetheless, we accept HSAs concession that the matter must be remanded for proper ICWA notice. According to the minute order from the initial detention hearing, appellant claimed Indian heritage through the Cree tribe. The jurisdictional report contained the same information. Although the social workers report stated that copies of the ICWA notices were attached that had been served on the Cree tribe and the BIA, the attached notices were to neither. Notably, the record does not reflect notice to the Chippewa-Cree Indians of the Rocky Boys Reservation of Montana, a federally registered tribe. (71 Fed.Reg. 43788, 43804 (Aug. 2, 2006).) Although the adoption assessment stated that appellants claimed Indian ancestry was through the Creek tribe, the record is sufficiently ambiguous in this regard to warrant a remand for clarification of appellants Indian heritage and proper notice. Furthermore, as appellant did not identify a specific tribe, notice to the BIA was required. (Cal. Rules of Court, rule 5.664(f)(4).)

DISPOSITION

The order terminating parental rights is vacated and the matter is remanded with directions to the juvenile court to make inquiry of appellant regarding her tribal affiliation and to order notice based thereon in compliance with the ICWA. Following such notice, if a tribe determines that the minors are Indian children, or if other information is presented to suggest the minors are Indian children as defined by the ICWA, the juvenile court is ordered to conduct a new hearing pursuant to section 366.26 in conformity with all provisions of the ICWA. If no tribe determines that the minors are Indian children, or

if no response is received indicating the minors are Indian children, all previous findings and orders shall be reinstated.

MORRISON , J.

We concur:

SCOTLAND, P.J.

CANTIL-SAKAUYE , J.

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^[1] Undesignated statutory references are to the Welfare and Institutions Code.

^[2] Although notice was also sent to three Cherokee tribes based on the alleged fathers asserted Indian ancestry, it was determined subsequently that this individual was not K.H.s biological father.

^[3] The Federal Register, which contains the names of designated agents for service of ICWA notice, lists the Thlopthlocco Tribal Town. (71 Fed.Reg. 43788, 43797 (Aug. 2, 2006).)