In re Reynaldo Z.

Filed 10/13/06 In re Reynaldo Z. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

SIXTH APPELLATE DISTRICT

Rosalinda H. appeals from the order terminating her parental rights to her children Reynaldo, Anthony and Diamond and placing them for adoption. (Welf. & Inst. Code, §§ 366.26, 395.)[1] Mother asserts that the juvenile court committed reversible error in (1) failing to ensure compliance with the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA); (2) finding the children to be adoptable without substantial evidence in support of the finding; and (3) failing to find that the beneficial relationship exception to adoption applied (§ 366.26, subd. (c)(1)(A)). She also claims the case should be remanded because of subsequent events. We find that the juvenile court failed to ensure compliance with the ICWA and reverse for further proceedings to ensure compliance.

BACKGROUND

On March 15, 2004, the Hollister police took nine-year-old Reynaldo, six-year-old Anthony and three-year-old Diamond into protective custody when their father Anthony Z. was arrested at home for narcotics violations and child endangerment. The family home was filthy and uninhabitable and had been condemned by the city of Hollister. The children’s mother, Rosalinda H., had not seen the children for nearly a year. Two days later, the San Benito County Health and Human Services Agency (Agency) filed dependency petitions under section 300, subdivision (b) [failure to protect] on behalf of the children. Factual allegations in the petition included the following: that the house had been without gas or electric service for three months; that the house contained propane tanks and torches, open lantern and stove fuel, candles, extension cords to a generator and other hazardous conditions; that the refrigerator was moldy and without food, dirty dishes and rotten food littered the kitchen, the toilet in the children’s bathroom was clogged and trash was throughout the house; that father used methamphetamine and marijuana on a regular basis and kept drug paraphernalia in his bedroom; that mother had a history of substance abuse and criminal charges; and that father failed to keep Diamond up to date on her immunizations and failed to obtain glasses for Reynaldo.

On March 29, 2004, the juvenile court found the allegations of the section 300, subdivision (b) petitions true and took jurisdiction over the children.[2]

The Agency social worker prepared a report for the disposition hearing. The children were living in a therapeutic foster home. Medical examinations showed Reynaldo had an irregular heartbeat and needed evaluation by a pediatric cardiologist, Anthony and Diamond had rotten teeth and needed dental care, and both boys were behind in school. Father reported he had taken care of the children for two years because mother had problems with drugs and alcohol. He admitted to the occasional use of drugs, but did not believe he had a problem. He blamed the living conditions on circumstances beyond his control. Mother was then living in Desert Hot Springs. She claimed that she had been clean and sober for seven months, but admitted that a drug test would show recent use of marijuana and methamphetamine. She was currently attending supervised visits with the children every week. The report also noted that the ICWA might apply, because father claimed he had one-eighth Native American blood of the “Suni” tribe through his father. The social worker could not locate such a tribe and stated she would conduct further research.

At the disposition hearing on April 26, 2004, the court ordered reunification services for both parents. In an order signed May 3, 2004, labeled “Findings & Orders Following the Jurisdiction Hearing on March 29, 2004,” a finding was made that the ICWA does not apply.

On August 23, 2004, the San Benito County juvenile court ordered transfer of these cases to Santa Clara County, over mother’s objection, because father had moved to Santa Clara County. On October 7, 2004, Santa Clara County accepted the transfer.

The report prepared by the Santa Clara County Department of Family and Children’s Services (Department) for the six-month review hearing noted that the children had been moved to a Santa Clara County foster home on November 1. The new foster parents reported that the children were adjusting well with no behavior problems. Reynaldo was recovering from surgery to repair his heart defect. Mother had been referred to drug counseling and parent training programs in Riverside County, but had not yet participated. She had attended only two of five scheduled visits with her children. She said that she would be satisfied if father regained custody of the children even if she did not. Father had attended two counseling sessions and had started a parenting education program with his girlfriend. He had provided two negative drugs tests and had been visiting the children regularly. The report indicated that the ICWA did not apply.

On December 1, 2004, the court continued reunification services to both parents.

The report prepared for the 12-month review hearing recommended terminating services for both parents. Although father was visiting regularly with the children, he had only partially complied with his case plan and had several positive drug tests. He was on probation, had married his girlfriend and was living with relatives in San Jose. Mother had not maintained contact with the social worker, had visited the children about once a month and had recently been admitted to an inpatient program in San Jose. The children were in the same foster home with the foster parents expressing interest in giving the children a permanent home. They had a good relationship with father and allowed him to visit the children in their home. Reynaldo was receiving special education services, his schoolwork had improved after he got new glasses, and he had started on medication to improve his distractible behavior. Anthony was being home-schooled because of his problems with toileting (encopresis). Diamond was in preschool and receiving speech therapy. The children told the social worker they were happy in their foster home.

At the 12-month review hearing on June 29, 2005, the court terminated services to both parents, who were not present at the hearing. The parents were notified of the hearing set for October 26, 2005, under section 366.26 to establish a permanent plan for the children, with guardianship being the recommended plan. However, in a report prepared before the hearing, the social worker changed the recommended plan to adoption because the foster parents expressed a strong desire to adopt the three children.

At mother’s request, the matter was set for a contested hearing. A further assessment report and addendum were prepared before the hearing on November 7, 2004. The children continued to do well in the foster placement and wanted to stay with the foster family if they could not return to their father. The foster parents were planning to move to Nevada and preferred to adopt the children rather than to have guardianship over them. Father did not object to this plan, but mother did. Father and his extended family visited the children regularly, while mother’s visits were sporadic with her last visit in May 2005. Several weeks before the hearing, a meeting was held to discuss the best plan for the children. It was attended by father, members of his family, the foster parents, the children’s therapist and other involved professionals. Father expressed his support for the plan of adoption, but reported that mother was opposed. The foster parents agreed to allow father and other family members to have continued contact with the children. The therapist reported that the boys had issues of grief and loss over the failure to reunify with their parents, but were making great strides in the care of the foster parents. He believed they were thriving and the foster parents were capable of meeting their special needs.

The permanency planning hearing was held on November 7, 2005. The social worker’s reports were admitted into evidence. Although father was not present, his attorney stated that he agreed with the plan of adoption. Mother testified and stated she did not agree with the plan. She explained that various personal circumstances caused her not to be able to visit the children.

The juvenile court found by clear and convincing evidence that the children were likely to be adopted and that no exception to adoption applied. The court terminated parental rights and referred the children for adoptive placement.

Mother filed a notice of appeal on December 20, 2005.

DISCUSSION

I. ICWA Notice

A. Factual Background

The Disposition Report prepared on April 22, 2004, by the San Benito County Health and Human Services Agency noted that father indicated that “he has 1/8 Native American blood through his father of the Suni Tribe.” As the Federal Registry had no information on such a tribe, the social worker indicated she would conduct additional research: “The Agency will conduct additional research to clarify the children’s status under the Indian Child Welfare Act and send appropriate notices at that time.” The disposition hearing was held on April 26, 2004. On May 3, the San Benito County juvenile court signed orders from the disposition hearing and also signed an order titled “Findings & Orders Following the Jurisdiction Hearing on March 29, 2004,” with a form notation that ICWA did not apply. Thus, this technical “finding” was made before the social worker explained that the ICWA might apply. Nothing in the record shows any further information.

When the cases were transferred to Santa Clara County in August 2004, no additional evidence was reported and the finding was repeated in the San Benito County “Transfer Out” Report. The finding was reiterated in the first status review report prepared in Santa Clara County on December 1, 2004.

In her opening brief on appeal, mother claimed that this finding of compliance with ICWA was not supported by substantial evidence. In Department’s responding brief, it reported that while the appeal was pending, the current social worker contacted the father and the paternal grandfather and asked for more information on their possible Indian heritage. The paternal grandfather told the social worker that he believed his mother and father had some Apache heritage, not Suni. He in turn contacted his mother who verified that family heritage was Apache but had no further details. The social worker also contacted the paternal grandmother who said that her family was Mexican and had no Indian heritage. On April 20, 2006, the information received was entered on the mandatory Judicial Council form JV-135 and was sent, with copies of the petitions and notice for a hearing on May 10, 2006, to the all Apache tribes, the Bureau of Indian Affairs (BIA) and the birth parents.[3] Several tribes responded that the children were not eligible for enrollment.[4]

A special hearing was held in the juvenile court on May 10, 2006. The court found that “Notice has been provided to the appropriate tribes as required under ICWA.” At the Department’s request, we took judicial notice of the documents filed and the juvenile court’s minute order stating the finding. (See In re Christopher I. (2003) 106 Cal.App.4th 533, 562-563.)

B. Analysis

Mother originally argued that the San Benito County juvenile court’s finding that the ICWA did not apply was not supported by substantial evidence because there is nothing in the record to show the social worker investigated the tribe named as “Suni” and sent appropriate notice. In her reply brief and in her opposition to the request for judicial notice, mother further argues that (1) belated introduction of the evidence of ICWA notice is impermissible in light of In re Zeth S. (2003) 31 Cal.4th 396, (2) the Santa Clara County court made a finding without waiting 60 days as is required by the California Rules of Court, rule 1439(f)(6),[5] and (3) she did not have an opportunity below to challenge the propriety of the notice or the court’s finding.

As has now been reiterated in numerous published decisions of the appellate courts, including this court’s opinion In re Samuel P. (2002) 99 Cal.App.4th 1259, proper and effective ICWA notice is critically important in dependency cases. Social service agencies and courts are responsible for ensuring that the law is rigorously followed. (Id. at p. 1264; see also rule 1439(d).)

“Under the ICWA, where a state court ‘knows or has reason to know’ that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C. § 1912(a).) The court and the social services agency have ‘an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child.’ [Citation.]” (In re Samuel P., supra, 99 Cal.App.4th at p. 1264.) Because the determination of a child’s Indian status is a matter for the tribe, “the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. [Citations.] Both the court and the county welfare department have an affirmative duty to inquire whether a dependent child is or may be an Indian child. [Citation.]” (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.)

It is now widely accepted that in order “[t]o satisfy the notice the provisions of the [ICWA] and to provide a proper record for the juvenile court and appellate court, [the Department] should follow a two-step procedure. First it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested. (Rule 1439(f).) Second, [the Department] 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 BIA.” (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; see also In re Karla C. (2003) 113 Cal.App.4th 166, 175-176, 178.)

The federal regulations require the ICWA notice to include, if known, “(1) the name, birthplace, and birth date of the Indian child; (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 child’s parents, grandparents, great-grandparents and other identifying information; and (4) a copy of the dependency petition. (25 C.F.R. § 23.11(d)(3) (2003); [citation].)” (In re Karla C., supra, 113 Cal.App.4th at p. 175.) This information is now collected and sent on Judicial Council form JV-130, Parental Notification of Indian Status. (Rule 1439(d)(3).) As explained by the court in Karla C., in order “ ‘[t]o establish tribal identity, it is necessary to provide as much information as is known on the Indian child’s direct lineal ancestors.’ (25 C.F.R. § 23.11(b) (2003).)” (In re Karla C., supra, at p. 175.)

Initially, we agree with mother that the San Benito County juvenile court erred in making the original finding without adequate information or evidence of proper notification to the tribes. But we do not agree that Zeth S. prohibits our consideration of the evidence of later notification now that the Santa Clara County Juvenile Court has made a finding that appropriate notification was given. In In re Zeth S., supra, 31 Cal.4th 396, our Supreme Court rejected the use of evidence of subsequent events to reverse a judgment in most dependency cases. The court concluded that “consideration of postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights, and the liberal use of such evidence to reverse juvenile court judgments and remand cases for new hearings, would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile court’s orders and judgment.” (Id. at p. 413, fn. omitted.)

Here, we are not considering “postjudgment evidence of changed circumstances” in terms of the placement of the children or the circumstances of the parents. Rather we are considering the evidentiary basis of the ruling by the court below which had “an affirmative and continuing duty to inquire whether a child for whom a petition under section 300, . . . has been, filed is or may be an Indian child.” (Rule 1439(d).)

In this case, the Department recognized the lack of required notice under ICWA and took steps to remedy the error as quickly as possible, in accord with rule 1439(d) and the concern for speedy resolution of issues under the juvenile dependency statutory scheme. (See In re Celine R. (2003) 31 Cal.4th 45, 59; see also In re Zeth S., supra, 31 Cal.4th 396, 412-413.)

In the ICWA hearing on May 10, 2006, the juvenile court reviewed the relevant documents and made a factual finding that appropriate notice had been given. However, as mother points out, rule 1439(f)(6) now requires the juvenile court to wait 60 days before making a finding as to whether or not the ICWA applies. (See In re A. U. (2006) 141 Cal.App.4th 326, 344 - 345.) This the juvenile court did not do. Notice was mailed to the tribes on April 20, 2006. The social worker’s report dated May 9, 2006, states that three tribes responded that the children were not eligible for enrollment with the respective tribes. There is no information on the other four tribes except copies of the postal return receipts indicating that they received the documents. The social worker’s report states that “The Indian Child Status is under investigation and to be decided by the tribes.” The report requests that the court find that notice was been provided under the Indian Child Welfare Act. The hearing occurred and the juvenile court made its finding on May 10, only 20 days after the notices were mailed. Tribes who had not responded within 20 days could have responded within the 60-day time period. The juvenile court did not make its finding based on complete information.

Moreover, the minute order simply states the juvenile court’s finding as: “Notice has been provided to the appropriate tribes as required under ICWA.” This does not fulfill the court’s continuing duty to determine whether the ICWA actually applies in this case. (See rule 1439(d), (f)(6).) As stated by the court in In re Jennifer A. (2002) 103 Cal.App.4th 692, 705: “[I]t is up to the juvenile court to review the information concerning the notice given, the timing of the notice, and the response of the tribe[s], so it may make a determination as to the applicability of the ICWA, and thereafter comply with all of its provisions, if applicable.”

Finally, mother raises a troubling point about her inability to challenge the notice proceedings. Even though she received a copy of the notice documents and notification of the hearing, she was no longer represented by trial counsel and had no right to be present at the hearing after her parental rights had been terminated. (See § 366.3, subd. (a).)

According to the record, mother is not the parent with the Indian heritage. And the most important information to be provided is the information that is known about the family member with the alleged Indian heritage. (In re Louis S. (2004) 117 Cal.App.4th 622, 631.) Here, the report states that the social worker talked to father and to his father (paternal grandfather) about possible Indian heritage. The paternal grandfather verified that family heritage was Apache, not Suni. Father admitted that his father’s information would be more accurate than his own vague recollection of Suni. The social worker also contacted the paternal grandmother who said that her family was Mexican and had no Indian heritage. The only information that can be included on the forms about family history is the information that is given to the social worker by the knowledgeable party. (See In re Karla C., supra, 113 Cal.App.4th at p. 175.) But mother is correct that she had no real avenue to participate or to object to any part of the notice as given.

We recognize that it may be highly unlikely that any tribe has responded in the interim that the children are eligible for membership or that mother has any further information to add or successful challenge to make to the notification as given. Nevertheless, mother had a right to raise any possible challenge to the notice as given. This she could not do without representation at the hearing to determine whether notice was properly given.

Careful and complete compliance with the ICWA is necessary and is an ongoing juvenile court responsibility. Neither the San Benito County juvenile court nor the Santa Clara County juvenile court had full information when their respective findings were made. On this record, we cannot find this to be harmless error. (See In re Jennifer A., supra, 103 Cal.App.4th at p. 705.) When this case is returned to the juvenile court as we have determined it must be, the parties are advised to set a further hearing as promptly as possible in order not to further delay permanency in the lives of these children.

II. Adoptability of Children

Next, mother asserts the juvenile court’s finding that the children were adoptable was not supported by sufficient evidence. She points to the children’s “significant special needs” and notes that the social worker reported that it was likely that the children may require a high level of care in the future. Mother claims that the evidence presented showed only one family interested in adopting the children.[6]

In the case of In re Erik P. (2002) 104 Cal.App.4th 395, we set forth the standards by which we evaluate a question of adoptability: “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. (§§ 366.26, subd. (c)(1), 366.22, subd. (b)(6); In re Jennilee T. (1992) 3 Cal.App.4th 212, 223.) In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; In re Jeremy S. (2001) 89 Cal.App.4th 514, 523.) In reviewing the juvenile court’s order, we determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence that [the child] was likely to be adopted within a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1153-1154; § 366.26, subd. (c)(1).)” (Id. at p. 400.)

When the juvenile court considers adoptability, the focus is on “whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. (See, e.g., In re Cory M. (1992) 2 Cal.App.4th 935, 951; In re Jennilee T.[, supra,] 3 Cal.App.4th 212, 224-225.)” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) It is not necessary that the child already be placed in a prospective adoptive home to be considered adoptable. “Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minor’s 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 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. (See In re Scott M. [(1993)] 13 Cal.App.4th [839,] 844.)” (In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)

Here, the evidence showed that the children had been living in the home of the prospective adoptive parents for a year and were making progress on their individual challenges. The children were happy in this home, and the prospective adoptive parents were well aware of the children’s individual needs and were committed to meeting those needs as they had for the past year. In addition, father supported this plan of adoption.

Mother errs in equating a special needs child with an unadoptable child. (See, e.g., In re Carl R. (2005) 128 Cal.App.4th 1051.) Reynaldo, Anthony and Diamond were thriving in this foster home, and the foster parents were committed to adopting them. Reynaldo was receiving appropriate medical care for his heart condition, educational assistance for his ADHD, and therapy to help with his feelings of sadness over the loss of his parents. The therapist expressed confidence that both Reynaldo and Anthony would continue to thrive in the foster home. Anthony’s encopresis was finally improving and he was relatively happy at school. Diamond was enjoying kindergarten and had no significant health issues or emotional problems. The foster parents had encouraged visitation with the birth family and were committed to continuing that visitation. In addition, an extended family member Gene K. (the paternal grandmother’s ex-husband) regularly visited the children and offered to be a standby placement.

In conclusion, the record contains substantial evidence in support of the juvenile court’s finding that Reynaldo, Anthony and Diamond are adoptable.

III. Beneficial Relationship Exception to Termination of Parental Rights

Mother further argues that the trial court erred in terminating parental rights because father came within the statutory exception provided in section 366.26, subdivision (c)(1)(A). Under that exception, if the court finds a compelling reason for determining that termination of parental rights would be detrimental to the child because the parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship, the court may avoid the statutory preference for adoption. (See § 366.26, subd. (c)(1)(A).)[7] Mother claims that father maintained regular visitation, the children were attached to him, and they would benefit from continuing the parental relationship.

Mother asserts that she may raise this argument because she has a parity of interest with father and her parental rights are affected by the termination order. In her view, if the juvenile court had found that the beneficial relationship applied, her parental rights would not have been terminated, and thus she has a right to raise the issue on appeal.

This reasoning is flawed in several ways. First, although mother may have standing to appeal the order terminating her parental rights, father did not appeal and mother cannot raise a claim of error on his behalf. As this court previously declared in discussing a claim of ineffective assistance of the other parent’s counsel, “We are unaware of any authority for the proposition that one parent can claim ineffective assistance of the other parent’s counsel when the other parent has not appealed. Indeed, the general rule is that ‘ “[a]n appellant cannot urge errors which affect only another party who does not appeal.” ‘ [Citations.]” (In re Joshua M. (1997) 56 Cal.App.4th 801, 807.) The court in Joshua M. also explained that the compulsory joinder provision of rule 1463(a) [requiring the juvenile court to terminate the parental rights of both parents in one proceeding] does not provide one parent with the avenue to properly assert that his or her rights have been violated by the improper termination of the other parent’s rights. (In re Joshua M., supra, at p. 808.)

Second, this claim of exception to adoption was not raised below and thereby the right to raise it on appeal is waived. (In re Rachel M. (2003) 113 Cal.App.4th 1289, 1295.) Moreover, “[t]he juvenile court does not have a sua sponte duty to determine whether an exception to adoption applies. [Citations.] The party claiming an exception to adoption has the burden of proof to establish by a preponderance of evidence that the exception applies. [Citations.]” (Ibid.) Neither parent raised the exception or presented evidence to support it.

Finally, we note that father in fact agreed with the plan of adoption. He had maintained visitation with the children, which was encouraged and facilitated by the prospective adoptive parents. They had agreed to continue visitation in the future. Father did not raise the beneficial relationship exception below nor did he appeal from the termination order. Mother is simply incorrect to state that “[b]oth parents’ interest was in the maintenance of the legal parental relationship.” Mother’s claim of trial court error is ill-founded.

In any event, the record contains substantial evidence in support of the juvenile court’s selection of adoption as the best permanent plan for the children. Adoption is the permanent plan preferred by the legislature. (In re Autumn H. (1994) 27 Cal.App.4th 567, 573.) The test for determining the applicability of the beneficial relationship exception in section 366.26, subdivision (c)(1)(A) is whether “the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.” (In re Autumn H., supra, at p. 575.)

In this case, the record shows the children, especially Reynaldo and Anthony, enjoyed visits with their father and wished they could continue to live with him. But as their comfort and attachment to the foster parents increased, they said they would be happy to live with them if they could not live with their father. We explained in the case of In re Brittany C. (1999) 76 Cal.App.4th 847, 854: “Where a biological parent, such as appellant, is incapable of functioning in that [parental] role, the child should be given every opportunity to bond with an individual who will assume the role of a parent. . . . [Citations.] To hold otherwise would deprive children of the protection that the Legislature seeks to provide. (§§ 300, 366.25, subd. (a), 366.26, subd. (b).)” As further explained in the case of In re Jasmine D. (2000) 78 Cal.App.4th 1339, “[T]he exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent.” (Id. at p. 1348.) “Thus, a child should not be deprived of an adoptive parent when the natural parent has maintained a relationship that may be beneficial to some degree but does not meet the child’s need for a parent. It would make no sense to forgo adoption in order to preserve parental rights in the absence of a real parental relationship.” (Id. at p. 1350.)

IV. Evidence of Changed Circumstances

Finally, mother asserts that the case should be remanded for a new hearing because after the permanency planning hearing and the orders terminating parental rights, the children’s placement failed.

The clerk’s transcript before us contains documents related to proceedings occurring after the hearing at issue here. These documents were filed prior to the filing of the notice of appeal and appear to have been included inadvertently when the clerk’s transcript was prepared below.

As we noted above, the Supreme Court in In re Zeth S., supra, 31 Cal.4th 396, rejected the use of evidence of subsequent events to reverse a judgment in most dependency cases. The court concluded that consideration of this postjudgment evidence of changed circumstances in an appeal of an order terminating parental rights “would violate both the generally applicable rules of appellate procedure, and the express provisions of section 366.26 which strictly circumscribe the timing and scope of review of termination orders, for the very purpose of expediting the proceedings and promoting the finality of the juvenile court’s orders and judgment.” (Id. at p. 413, fn. omitted.) In light of this strong policy statement, we decline to consider this evidence of subsequent events. We must point out that following the section 366.26 hearing at issue here, the children remain under the jurisdiction of the juvenile court. Regular, frequent review hearings are prescribed by law. (See, inter alia, § 366.3, subd. (a).)

As discussed above, the juvenile court’s finding that the children are adoptable is supported by substantial evidence and parental rights were properly terminated. The question of whether or not the children will need a new placement is not presently before us.[8]

DISPOSITION

The order terminating Rosalinda H.’s and Anthony Z.’s parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions to promptly hold a further hearing, at which mother and father are represented by counsel, to determine whether the ICWA applies, based on any further responses received from the noticed tribes. If no tribe has responded indicating that the children are Indian children, or the responses received indicate the children are not Indian children within the meaning of the ICWA, the order terminating parental rights shall be immediately reinstated. If any noticed tribe has determined that the children are Indian children within the meaning of the ICWA, the juvenile shall conduct further proceedings applying the provisions of the ICWA, Welfare and Institutions Code section 360.6, and rule 1439 of the California Rules of Court.

Duffy, J.

WE CONCUR:

Mihara, Acting, P.J.

McAdams, J.

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

[2] Other allegations of the petition under section 300, subdivision (g) [no provision for support] based on the lack of knowledge of mother’s whereabouts and father’s incarceration were dismissed.

[3] The tribes noticed were the Apache Tribes of Oklahoma, Fort Sill Apache Tribe of Oklahoma, Jicarilla Apache Nation, Mescalero Apache Tribe, San Carlos Tribal Council, Tonto Apache Tribal Council, White Mountain Apache Tribal Council, Yavapai-Apache Community Council.

[4] These responding tribes were Yavapai-Apache Nation, Tonto Apache Tribe, and San Carlos Apache Tribe.

[5] California Rules of Court, rule 1439(f)(6) provides: “If, after a reasonable time following the sending of notice under this rule--but in no event less than 60 days--no determinative response to the notice is received, the court may determine that the act does not apply to the case unless further evidence of the applicability of the act is later received.” All further rule references are to the California Rules of Court.

[6] Although mother cites evidence of events that took place after the hearing at issue here, we decline to consider such information. See Section IV, post.

[7] Section 366.26, subdivision (c)(1) reads in pertinent part: “If the court determines . . . that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . A finding . . . that the court has continued to remove the child from the custody of the parent or guardian and has terminated reunification services, shall constitute a sufficient basis for termination of parental rights unless the court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: (A) The parents or guardians have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship.”

[8] A relatively new statutory provision allows a child who has not been adopted after parental rights have been terminated for at least three years to petition to reinstate parental rights. (§ 366.26, subd. (i)(2).)