Filed 1/25/18 In re T.G. CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re T.G. et al., Persons Coming Under the Juvenile Court Law.

SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES,

Plaintiff and Respondent,

v.

S.G. et al.,

Defendants and Appellants.


E069117

(Super.Ct.Nos. J261877, J261878 & J261879)

OPINION


APPEAL from the Superior Court of San Bernardino County. Annamarie G. Pace, Judge. Reversed and remanded with directions.
Neil R. Trop, under appointment by the Court of Appeal, for Defendant and Appellant father, S.G.
Marissa Coffey, under appointment by the Court of Appeal, for Defendant and Appellant mother, J.C.
Michelle D. Blakemore, County Counsel, and Dawn M. Martin, Deputy County Counsel, for Plaintiff and Respondent.
Defendant and appellant J.C. (mother) is the mother of A.L., D.L., and T.G. Defendant and appellant S.G. (father) is the father of T.G. Both mother and father (parents) appeal from the juvenile court’s order terminating their parental rights under Welfare and Institutions Code section 366.26. Mother’s sole contention is that notice pursuant to the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.) was insufficient. Father challenges the court’s finding that T.G. is generally adoptable. We reject father’s contention, but agree with mother’s. We therefore reverse and remand for further proceedings.
I. PROCEDURAL BACKGROUND AND FACTS
A. Detention.
On June 3, 2015, plaintiff and respondent San Bernardino County Children and Family Services (CFS) received referrals alleging father sexually abused mother’s minor sister. At that time, there was an open referral for mother and her children: S. (born in 2009), A.L., D.L., and T.G., based on the allegation that father had also molested S. CFS was informed that father had a history of sexually molesting family members during his teen years. Although mother was aware of father’s past acts of sexual abuse, she refused to believe the recent accusations. The children were detained and placed with the maternal grandmother (grandmother). On September 1, 2015, CFS filed a section 300 petition alleging that T.G. came within subdivisions (b), (d), and (j), based on mother’s and father’s mental condition, father’s drug history, his history of sexually abusing family members, and his sexual molestation of S., T.G.’s half sibling. The section 300 petitions filed on behalf of A.L. and D.L. also included allegations that their father’s whereabouts were unknown and he had been convicted of willful cruelty to a child after he abused his children. On the ICWA-020 form, father indicated Cherokee and Choctaw Indian heritage, while mother checked the box: “I have no Indian ancestry as far as I know.”
At the September 2, 2015, detention hearing, mother informed the juvenile court that her “great-grandmother was Blackfoot Indian.” The court modified mother’s ICWA-020 form and ordered that the children be detained. That same day, a “Notification of Mailing Address” was filed for both parents. The parents were listed as having the same mailing address.
On September 21, 2015, CFS filed with the juvenile court a Notice of Child Custody Proceedings for Indian Child (Judicial Council Form ICWA-030) indicating that notice had been sent to the parents, tribes, the Bureau of Indian Affairs, and Secretary of the Interior. Although notice was sent to the mailing address identified by both parents, the notice was addressed only to father, not mother. The Form ICWA-030 for T.G. included mother’s information, along with the names of grandparents, paternal great-grandparents and maternal great-grandmother. The Form ICWA-030 for A.L. and D.L. included mother’s information, along with the names of her parents, and her maternal grandmother. Regarding their father, the form identified L.L. and provided a birth date and place as “10/19/1990, California.” No information was provided for L.L.’s parents and grandparents. CFS filed ICWA Declarations of Due Diligence with the court. None of the responses of the Indian tribes indicated Indian ancestry.
B. Jurisdiction and Disposition.
In the jurisdiction/disposition report filed on September 21, 2015, CFS recommended that the children be removed from parents’ care and reunification services be offered. Mother remained unsure whether she believed any of the sexual molestation charges against father. Father stated that he had been diagnosed with, inter alia, posttraumatic stress disorder resulting from physical abuse by his alcoholic step-grandfather. Father denied the accusations of molestation. The social worker was concerned with father’s inability to acknowledge any of his actions, given the number of children accusing him of molestation. (In re T.G., supra, E066532.) On December 8 and December 14, 2015, CFS filed the final ICWA Declarations of Due Diligence recommending the juvenile court find that noticing had been conducted and ICWA did not apply. Also on those same dates, the court found that ICWA did not apply to the children.
At the January 22, 2016, contested jurisdiction/disposition hearing, the juvenile court sustained the allegations in the section 300 petition and ordered reunification services for both parents, informing them that the services may be limited to six months. (In re T.G., supra, E066532.)
C. Six-month Status Review.
In the six-month review report filed on July 12, 2016, CFS recommended that reunification services be terminated for father, but continued for mother. Father had participated in services for a period of time, but he did not appear to benefit from them because he continued to deny the sexual molestation allegations against him. He was dishonest with the social worker; CFS learned that he stopped attending individual counseling and parenting education classes on March 9, 2016. Father only performed one random drug test, failed to contact Inland Valley Recovery Services (IVRS), was homeless, and missed more visits than he attended. (In re T.G., supra, E066532.)
Mother was unemployed and living a transient lifestyle. She had continued a relationship with father for seven months after she learned of his sexual molestation of S., but she ended the relationship after being told by CFS that it could affect her ability to reunify with the children. Mother had been actively participating in services, but then she “abruptly stopped.” CFS referred her to further services and requested additional time to reassess her. Although mother’s visits with T.G. were inconsistent, they were improving, and mother was interactive and loving toward her. (In re T.G., supra, E066532.)
The section 366.21, subdivision (e), six-month status review hearing was held on August 2, 2016. Father had not benefitted from the services, because he stopped going and “did nothing” beginning in March. He “flat out refus[ed] to do any sexual abuse counseling” and he failed to consistently visit with T.G. Father made minimal progress over the course of 11 months. The juvenile court found that reasonable reunification services were offered to father, but he “failed to participate regularly and make substantive progress in the case plan.” The court terminated father’s reunification services, but extended mother’s for an additional six months. Father appealed the order terminating reunification services; we affirmed. (In re T.G., supra, E066532.)
D. Twelve-month Review Hearing.
In the status report filed September 30, 2016, CFS recommended that the children remain in relative placement with the grandmother, reunification services be terminated as to mother, and a section 366.26 hearing be set to establish a permanent plan of guardianship. Mother had not completed her case plan. Although she had been consistently visiting, she was not taking advantage of the opportunities she was given, such as cooking breakfast for the children, bathing them, and assisting in T.G.’s toilet training. While father’s reunification services had been terminated, he had been consistently visiting T.G. and actively involved in attending parenting classes, individual therapy sessions, and an outpatient drug recovery program. T.G. was doing well in her placement with the grandmother.
At the November 17, 2016, hearing, the juvenile court terminated mother’s reunification services and set a section 366.26 hearing. Mother filed a Notice of Intent to file a writ petition; however, a nonissue letter was filed on her behalf, and her writ petition was dismissed on December 8, 2016.
E. Section 366.26 Hearing.
In the section 366.26 report filed March 7, 2017, CFS recommended that parental rights be terminated and the permanent plan of adoption be implemented. The children had been placed with the grandmother since August 2015. They were bonded and the grandmother wished to adopt them. Since November 2016, mother had seen the children three times, and father had not had any visits with T.G. T.G.’s routine physical examination revealed no problems. However, a mental health clinician at SART (Screening, Assessment, Referral and Treatment program) reported that T.G. was sometimes “hitting herself in the head, had poor boundaries with strangers and she was observed [rocking] herself in her sleep.” Since receiving SART services, T.G.’s “self-injuring behaviors” had diminished.
On April 21, 2017, CFS recommended suspension of visitation between the children and their parents because the “visits are detrimental to the children.” The grandmother reported that the children became more aggressive with each other following visitation with their parents. The SART clinician also observed the emotional disruptions in the children during sessions following their visits with the parents. In the addendum report filed on June 5, 2017, CFS continued to recommend termination of parental rights and adoption of the children by the grandmother and her adult daughter (aunt).
The contested section 366.26 hearing was held on September 12, 2017. Both mother and father were present. Father’s counsel argued for reinstatement of visitation and “a lesser permanent plan that does not include adoption.” Counsel asserted that father had a strong bond with all the children and that it would be in their best interests to continue services. Mother’s counsel objected, but offered no affirmative evidence. The juvenile court found there was clear and convincing evidence that the children “are both generally and specifically adoptable” and there is “no exception to the preference for adoption.” Mother’s and father’s parental rights were terminated.
II. DISCUSSION
A. Substantial Evidence Supports the Finding That the Child Is Adoptable.
Father contends that neither T.G. nor her half siblings could be found “generally adoptable.” We disagree.
“‘The juvenile court may terminate parental rights only if it determines by clear and convincing evidence that it is likely the child will be adopted within a reasonable time. [Citations.]’” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.) We review a finding of adoptability under the deferential substantial evidence standard. (Id. at pp. 1561-1562.)
The statutory framework does not distinguish between a child who is “generally adoptable” and one who is “specifically adoptable.” Some courts, however, have made such distinction: A child is “generally adoptable” if his “age, physical and emotional condition and other personal attributes are not likely to dissuade individuals from adopting him. [Citation.]” (In re R.C. (2008) 169 Cal.App.4th 486, 492.) A child “who is not generally adoptable because of age, poor physical health, physical disability or emotional instability may nevertheless be [specifically] adoptable because a prospective adoptive family has been identified as willing to adopt the child. [Citation.] ‘When a child is deemed adoptable only because a particular caretaker is willing to adopt, the analysis shifts from evaluating the characteristics of the child to whether there is any legal impediment to the prospective adoptive parent’s adoption and whether he or she is able to meet the needs of the child.’ [Citations.]” (Id. at p. 494.)
Father maintains that the “facts strongly support the conclusion that if [the children are] adoptable, [they are] only specifically adoptable.” He notes that the children “exhibited significant behavioral problems which contradict[] a finding of general adoptability.” Moreover, he asserts that “[f]inding a single adoptive home for these three young siblings would be very difficult.” Father does not contend there is “‘any legal impediment’” to adoption by grandmother and aunt, nor does he question whether they are able to meet the needs of the children. (In re R.C., supra, 169 Cal.App.4th at p. 494.) Rather, he is concerned if the grandmother and aunt either “become unable or unwilling to follow through with adoption” or CFS or the court were not to approve of them adopting the children. Nonetheless, he acknowledges that T.G. has been living with grandmother and her half siblings since the inception of the action, that she has thrived in grandmother’s home, and that she has become bonded to grandmother and other family members living in the home.
Even assuming that T.G. is not generally adoptable because of her behavioral issues and the fact that she is part of a sibling group, a questionable premise, we conclude the evidence supports a finding that she is specifically adoptable. There is substantial evidence that grandmother and aunt want to adopt all of the children, and both CFS and the court will approve them for adoption of the children, within a reasonable time. (In re Michael G. (2012) 203 Cal.App.4th 580, 589.) Father has therefore demonstrated no error with respect to the juvenile court’s finding of adoptability.
B. ICWA Notice Was Not Sent to Mother Pursuant to Section 224.2.
Mother does not claim that CFS failed to send notice to any tribe to which it was required to send notice. Rather, she contends the notice was deficient because it omitted, or incorrectly stated, certain information. She argues that because she was never served with a copy of the ICWA notice, she was denied the opportunity to dispute its sufficiency. Under these circumstances, mother asserts a limited reversal is appropriate. We agree.
Notice under ICWA must contain sufficient information to determine a child’s direct ancestors. (§ 224.2, subd. (a)(5); In re Francisco W. (2006) 139 Cal.App.4th 695, 703 (Francisco W.).) Here, the ICWA notice failed to provide the name of mother’s great-grandmother (the children’s great-great-grandmother), the children’s places of birth, and the birth date for L.L. that she provided to the court. Moreover, “any notice sent in an Indian child custody proceeding under this code shall be sent to the minor’s parents . . . .” (§ 224.2, subd. (a), italics added.) In this case, the ICWA notice was sent to the mailing address identified by mother, but the notice was addressed to father only. According to mother, if she had received the notice, she would have seen the missing or incorrect information and provided it to CFS. Because we cannot say that the omission of the great-great-grandmother’s name, the children’s birthplaces, and L.L.’s birth date (provided by mother) did not impact the ability of each of the tribes to conduct a meaningful search of tribal records to determine whether the children were Indian children, we will reverse and remand for proper ICWA noticing.
When the ICWA notice is defective, appellate courts employ a limited reversal. The ICWA “limited reversal approach is well adapted to dependency cases involving termination of parental rights in which we find the only error is defective ICWA notice. This approach allows the juvenile court to regain jurisdiction over the dependent child and determine the one remaining issue.” (Francisco W., supra, 139 Cal.App.4th at p. 705, italics added.) No other issues may be considered on remand, which is limited to compliance with ICWA. “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.” (Francisco W., supra, at p. 708.)
We conditionally reverse the order terminating parental rights to the children, and remand the case with directions to the juvenile court to ensure full compliance with the ICWA. On remand, CFS must make an effort to interview mother and obtain the correct information for the ICWA notice, and mother must contact CFS to provide the correct, or missing, information for the ICWA notice. If mother fails to provide any new or different information, then the juvenile court shall reinstate the orders terminating parental rights. However, if mother provides new or different information, CFS shall renotice the parents, tribes, Bureau of Indian Affairs, and Secretary of the Interior, in compliance with ICWA.
III. DISPOSITION
The orders terminating the parental rights to T.G., D.L. and A.L. are conditionally reversed. The matter is remanded to the juvenile court for the limited purpose of ensuring compliance with the ICWA. If, after such compliance, the juvenile court determines that the children do not have Indian heritage, then the juvenile court shall reinstate the orders terminating mother’s and father’s parental rights and may proceed accordingly.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


RAMIREZ
P. J.
We concur:

MCKINSTER
J.

MILLER
J.