In re K.B.

Filed 6/02/08 In re K.B. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Yuba)

----

Keith B. (Father) and L.R. (Mother), the parents of one-year-old K.B. and three-year-old S.B. filed separate appeals from a juvenile court order terminating parental rights.^[1] (Welf. & Inst. Code,  366.26, 395.)^[2] They contend (1) the finding that S.B. was adoptable is not supported by substantial evidence, and (2) the court failed to ensure compliance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C.  1901 et seq.). We shall remand for further ICWA proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

Petition

In June 2006, the Yuba CountyHealth and Human Services Department (hereafter, the Department) filed petitions alleging that K.B. (four days old) and S.B. (two years old) were within the provisions of section 300, subdivision (b) in that:

(1) While K.B. did not test positive for marijuana at birth, Mother admitted having smoked marijuana just before the birth and several times during the pregnancy. Father admitted having smoked marijuana with Mother on several occasions during the pregnancy.

(2) The parents have histories of domestic violence and substance abuse. The domestic violence occurred in S.B.s presence and during K.B.s gestation. Both parents had convictions and failed to participate in ordered anger management programs. Mother also failed to participate in ordered alcohol and drug treatment.

(3) Both parents were awaiting sentencing for the most recent domestic violence incident. Father claimed not to have harmed Mother, who had bruising on her back, arms and finger, a swollen finger, and a cut above her ear. Both parents admitted that the fight occurred because Mother, who has a history of methamphetamine abuse, wanted to use the drug during the pregnancy with K.B. Mother admits she wants to use drugs to cope with stress, but denies that she has a drug problem or needs substance abuse treatment.

Detention

Following a contested detention hearing, the juvenile court found a prima facie showing had been made that the children were within the provisions of section 300. The children were placed with Mother so long as she was enrolled in the Progress House Residential Treatment Facility program. The children were placed at Progress House on July 3, 2006.

Jurisdiction

At the jurisdictional hearing in July 2006, all parties submitted on the basis of the social workers report and addendum. The juvenile court found that the petitions allegations were true and ruled that the children were within the courts jurisdiction. The addendum noted that the Progress House program manager had raised concerns regarding Mothers severe lack of parenting skills. Moreover, Mothers participation in the program had been minimal. Finally, Mother had been overheard accusing Father of being under the influence a few days before Mother was scheduled to leave the facility on a day pass with Father. At the hearing, the program manager testified that Mother had been overheard discussing a plan to have the maternal grandmother abscond with the children to Nevada. The court ordered the children detained.

Disposition

The social workers disposition report indicated that both children underwent physical examinations in late June 2006. S.B. was adjusting to a bedtime routine. No issues were noted with respect to K.B. At the dispositional hearing in August 2006, the juvenile court removed the children from the parents and ordered that the parents receive reunification services.

Six-month review

The social workers six-month review report, filed in January 2007, recommended termination of reunification services for both parents. The report noted that S.B. enjoyed playing outdoors and wrestling. However, he would eat with his hands rather than with utensils, and instructing him to use utensils would cause him to scream. He would destroy mattresses and other items in his room, bite himself and bang his head on the wall. He would remove his diapers and smear feces on the walls. He would use foul language, and he would hit and push another child resident of the home.

The review report contained a January 2007 mental health assessment of S.B., which found that his motor activity, speech and memory were within normal limits. He was friendly, outgoing and highly energetic; he sought attention in appropriate ways. The assessment recounted the foster mothers statement that, although S.B. had been disobedient, stubborn, and unresponsive to punishment, he has improved greatly during his five months in placement. Most of the foster mothers frustration with S.B. arose from his competitiveness for attention with their foster daughter who is the same age as S.B. Based on S.B.s age and his improvement over time, the assessment did not recommend any therapeutic treatment.

The January 2007 review report noted that Father had consistently used marijuana and methamphetamine, had made minimal use of services, and was presently incarcerated. Mother delayed entering treatment for three months, had completed only 60 days of treatment, and had not addressed domestic violence or codependency issues.

At the review hearing, the social worker recommended that Mothers services be continued, rather than terminated, provided that Mother complete codependency, domestic violence and substance abuse programs, participate in individual counseling, and undergo a psychological evaluation. The court ordered continued services to Mother and terminated services to Father.

Twelve-month review

The social workers 12-month review report, filed in July 2007, recounted that the previous February the foster mother had requested an update on services for S.B. No services had been recommended because the mental health assessment had concluded that S.B.s behaviors were improving. The foster mother said she had not told the assessor that S.B.s behaviors were improving. Rather, she had said that S.B. has good days and bad days, but his good [sic] days are very difficult. She added that when [S.B.] does not hurt himself or try to hurt himself, that is a great day. She reported that S.B. is very loving, but he will change at the drop of a pin. He recently was cuddly all day and then all of a sudden, he put his finger in [the foster mothers] face and said, youre going to jail bitch. She also said that S.B. is consistently aggressive with her adopted child who is S.B.s age.

In June 2007, the foster mother reported that, since being taken out of his day care program, S.B.s behaviors have drastically worsened again. He had ripped a third mattress, and the foster parents kept buying new ones for him. The foster mother stated that S.B. was physically aggressive toward other children in the home and was having massive meltdowns, during which he would scream at the top of his lungs things such as Mommy needs me.

The foster mother reported that in July 2007, approximately a year after being placed at the foster home, S.B. repeatedly had screamed, Mommy needs me and Mommy loves me. The foster mother said she had never seen a child engage in such strange behavior.

At the 12-month review hearing in July 2007, the juvenile court found that Mother had not made substantial progress toward reunification. Her reunification services were terminated and a section 366.26 hearing was set.

Section 366.26 hearing

The social workers report for the section 366.26 hearing, filed in November 2007, recommended termination of parental rights and a permanent plan of adoption. The report noted that in August 2007, the children had been moved to a new foster home with a family that the state Adoptions Services Bureau had identified as prospective adoptive parents. However, the family had not stated that they were committed to adopting the children.^[3] S.B., who was then three years old, was attending preschool two days a week and had no behavioral issues at school. He was not attending counseling, but he may begin therapy soon.

The social worker noted that S.B.s current behavior issues are reported to be the result of his need to be in control and power struggles between him and his foster parents. [S.B.] has reportedly created issues with food and will change his mind frequently and throw up on purpose when he is given something that he does not want to eat. When he does not get his way, he is reported to tantrum and cry. Also, the foster parents reported to this social worker that [S.B.] will begin crying inconsolably for apparently no reason. The foster parents have reported that they are doing their best to redirect [S.B.] towards more positive ways of expressing his feelings. However, they . . . are unsure how to handle these behaviors appropriately and would like assistance from a therapist.

K.B., who was then one year old, was reported to bite and to be pushy around other children her age. She had no other reported difficulties.

In support of its recommendation to terminate parental rights, the report stated: These children have been placed in a foster home that is considering adopting them and providing them with a permanent home. With the uncertainty that these children have endured[,] it is time for them to find some stability and permanence. [] [S.B.] is an extremely intelligent three year old and the life that he lived with his parents influenced him, this is made clear by the behavioral issues that he is exhibiting. [S.B.] will benefit from a family setting that is dedicated to meeting his therapeutic and emotional needs. He has endured enough instability and he requires a consistent and loving family environment.

The section 366.26 report included an assessment from the foster family agency. The assessment stated that S.B. had [non]serious problems adjusting to the new adoptive home, that his socialization with peers was [e]xcellent, and that he appeared to interact well with children his own age. However, he was needy and sought attention from those around him. The assessment explained that S.B. continues to display behavior problems, however their severity appears to have decreased. His behaviors are less physical but he continues to power struggle. He creates issues with food, changing his mind often about what he wants to eat and throwing up when he does not want it. When he does not get his way he continues to throw tantrums and will usually cry. The foster parents have tried a couple different approaches to address his behavior issues. They try to avoid feeding in to the negative and rewarding the positive behavior.

The section 366.26 report also included a state adoption assessment that had been prepared two months after the childrens move to the new foster home. The assessment stated: [S.B.s] mental and emotional status appears to be progressing. [S.B.] came into foster care after watching chronic domestic violence between his parents. He used foul language and knew about law enforcement and jail. [S.B.s] previous foster home found his behaviors overwhelming, so the foster mother gave into [sic] his tantrums rather than appropriately disciplining him. Therefore, the current foster home is seeing behaviors and [S.B.] is confused because they are disciplining him where in the past, he could do whatever he wanted. This foster home is also much less chaotic than his previous home, so he is currently in the adjustment phase. All members of the family are adapting to each other.

The state adoption assessment concluded: Preliminary evaluation shows the current caretakers to be suitable to adopt [the children]. The undersigned is working closely with the family to provide direction concerning a permanent plan for [the children]. Initially, the foster family was turned upside down when the children moved in[to] their home. However, they were not interested in abandoning the placement without giving the transition a chance. The undersigned was impressed with their commitment to [the children] even under difficult circumstances. The children have a good relationship with this family and would benefit from the establishment of a permanent parent/child relationship through adoption. The state Department of Social Services recommended that the juvenile court terminate both parents rights to both children.

At the section 366.26 hearing in November 2007, the trial court found by clear and convincing evidence that it is likely the children would be adopted. The parental rights of both parents were terminated.

DISCUSSION

I

The parents contend the adoptability finding was based on wishful thinking because [the children] needed a permanent and stable home. The worker found them adoptable because it is time for them to find some stability and permanence. The parents argue that, until S.B.s behavioral issues are resolved and his foster family has committed to adopt the children, any adoptability finding is premature. We disagree.

To terminate parental rights, the [juvenile] court must find by clear and convincing evidence that it is likely that the child will be adopted. (In re Asia L. (2003) 107 Cal.App.4th 498, 509 (Asia L.);  366.26, subd. (c)(1).) There must be convincing evidence of the likelihood that adoption will take place within a reasonable time. (In re Brian P. (2002) 99 Cal.App.4th 616, 624 (Brian P.).)

On appeal, we must uphold the finding of adoptability and termination of parental rights if they are supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) 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 (Autumn H.).) In selecting a permanent plan for an adoptable child, there is a strong preference for adoption over nonpermanent forms of placement. (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)

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.] 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 (Sarah M.); see In re Zeth S. (2003) 31 Cal.4th 396, 406.)

In this case, K.B. and S.B. are now two and four years old, respectively. Neither child has any identified physical impairment. K.B.s emotional state was not problematic except that she was reported to bite and to be pushy around other children her age.

The parents claim that S.B. exhibited serious behavioral problems that may preclude him from surviving the transition period in the new foster home. However, their citations to the section 366.26 report do not support their characterization of the problems as serious. The report stated that S.B. had not been in counseling. We can infer in favor of the order that his behavior had not previously appeared sufficiently serious to have warranted therapeutic intervention. (Autumn H., supra, 27 Cal.App.4th at p. 576.)

Alternatively, the report stated that the new foster parents had requested assistance from a therapist. We may infer in favor of the order that the requested therapy could reduce the severity of S.B.s problems. (Autumn H., supra, 27 Cal.App.4th at p. 576.)

In any event, the court could deduce that S.B.s problems would decrease even if therapy were not provided. There was evidence that S.B. had not been well served by his previous foster parents, who had yielded to his tantrums rather than applying appropriate discipline. The court could find it likely that the change of foster homes would cause S.B.s behavior to improve. The foster family agency assessment stated that, while S.B. continues to display behavior problems, their severity appears to have decreased.^[4] The foster parents were doing their best to redirect S.B. toward more appropriate behavior. The prospect that S.B. may have some continuing behavioral problems does not foreclose a finding of adoptability. (In re Jennilee T. (1992) 3 Cal.App.4th 212, 224.) The court was not required to conclude that S.B.s emotional problems remained so severe that an adoptability finding was precluded.

The parents claim S.B.s behaviors should have precluded him from being considered generally adoptable should the current placement fail, as there was no showing there were other families available who were interested in adopting a child with similar problems. However, as we have noted, it is not necessary that . . . there be a proposed adoptive parent waiting in the wings. (Sarah M., supra, 22 Cal.App.4th at p. 1649;  366.26, subd. (c)(1).)

The parents rely on decisions involving multiple children whose emotional problems or special needs rendered them difficult to place (Asia L., supra, 107 Cal.App.4th at pp. 511-512; In re Amelia S. (1991) 229 Cal.App.3d 1060, 1063), or in which the finding of adoptability was premised solely on the willingness to adopt by an individual whose suitability for adoption had not been assessed (In re Jerome D. (2000) 84 Cal.App.4th 1200, 1205). In this case, unlike Asia L. and Amelia S., the evidence did not suggest that S.B.s remaining behavioral issues would make it difficult to find an adoptive placement. Unlike Jerome D., a preliminary evaluation by the Adoptions Services Bureau found that the prospective adoptive parents were suitable to adopt and that they have no criminal or child abuse record.

The parents reliance on Brian P., supra, 99 Cal.App.4th 616, involving a four-and-a-half-year-old child with a history of developmental difficulties, is misplaced. In that case, the juvenile court did not have the benefit of an adoption assessment report, which would have presented the kind of facts needed to support a finding of adoptability. (Id. at p. 624.) Although other reports stated that the child was adoptable, they contained no evidence to support this conclusion, and the appellate court determined th[e] record raise[d] as many questions as assurances about his adoptability. (Id. at pp. 624-625.) The court concluded the fragmentary and ambiguous evidence was not enough to buttress the [social service a]gencys position that [the child] was adoptable. (Id. at p. 625.)

Here, unlike in Brian P., the court had the benefit of an adoption assessment report. The assessment contained information about the childrens developmental, emotional, medical, mental and scholastic status. The adoptability finding is supported by substantial evidence. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)

II

The parents contend the section 366.26 orders must be reversed because the trial court failed to ensure that the Department complied with the ICWA. We shall remand for further ICWA proceedings.

Background

The petitions alleged that K.B. may be of Indian ancestry. Curiously, no similar allegation was made as to her full sibling, S.B.

In May 2006, Mother told the social worker that she did not have Indian ancestry. She also signed a form (JV‑130) stating, I have no Indian ancestry as far as I know.

In May 2006, Father informed the social worker that he might have Indian heritage, and signed a form (JV‑130) stating, I may have Indian ancestry.

In June 2006, Father reiterated that he may have Indian heritage. Due to time constraints, Father did not complete a notice of involuntary proceedings for an Indian child (JV‑135), which would have requested further ancestry information. The social worker made arrangements for Father to complete the form in late June 2006. However, when he learned that his children would be placed with Mother at Progress House, Father became angry and refused to come into the office to complete the form.

In July 2006, Father came to the office to complete the JV‑135 form. The form requested some information that Father did not have readily available. He told the social worker that he would obtain certain information from his mother and forward it to her that afternoon or the next day. However, Father never contacted the social worker regarding the additional information. The report for the dispositional hearing thus states: As [Father] failed to provide all necessary information for the completion of the JV‑135, the notices were sent with this worker filling out the form to the best of my ability.

Thus, the JV‑135 form filed in July 2006 stated that the children are reported to be eligible for membership in the three federally recognized Cherokee tribes. The form listed the childrens names, dates and places of birth; Mothers name, current address, four former addresses, and date of birth; Fathers name, current address, two former addresses, and date and place of birth; the paternal grandmothers present and maiden names, current address, and date of birth; the paternal grandfathers name only; the paternal great-grandmothers present and maiden names only; and no information on the paternal great-grandfather.

The report for the six-month review hearing stated that the ICWA does not apply in this case. Notices were sent to the Cherokee tribes. The United Keetoowah Band of Cherokee Indians reported that the children are not eligible for enrollment. The Eastern Band of Cherokee Indians and the Cherokee Nation each reported that the children are not considered Indian children and that the tribe is not empowered to intervene in the proceedings.

Subsequent court reports indicated that the ICWA is not applicable.

Analysis

The ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C.  1901, 1902, 1903(1), 1911(c), 1912.) To facilitate participation, notice of the pending proceeding and the right to intervene must be sent to the tribe or to the Bureau of Indian Affairs (BIA) if the tribal affiliation is not known. (25 U.S.C.  1912(a);  224.2, subd. (a).) Once notice is provided, it must be sent for each subsequent hearing until it is determined that the ICWA does not apply. ( 224.2, subd. (b); In re Marinna J. (2001) 90 Cal.App.4th 731, 736.)

Because the principal purpose of the ICWA is to protect and preserve Indian tribes, a parents failure to raise an ICWA notice issue in the juvenile court does not bar consideration of the issue on appeal. (In re Marinna J., supra, 90 Cal.App.4th at p. 739; see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1.)

As noted, the social worker interviewed Father and filed the JV‑135 form in July 2006. The Legislature enacted sections 224.2 and 224.3, effective January 1, 2007. (Stats. 2006, ch. 838,  31, 32.) The section 366.26 hearing was conducted in November 2007.

Section 224.3, subdivision (a) provides in relevant part: The court [and] county welfare department . . . have an affirmative and continuing 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 in all dependency proceedings . . . if the child is . . . in foster care. (Italics added.) Because this duty of inquiry was continuing, it was operative during the pendency of this case and we consider whether the social workers July 2006 efforts were sufficient to satisfy the duty. We conclude they were not.

Section 224.3, subdivision (c) provides in relevant part: If the . . . social worker . . . knows or has reason to know that an Indian child is involved, the social worker . . . is required to make further inquiry regarding the possible Indian status of the child, and to do so as soon as practicable, by interviewing the parents, Indian custodian, and extended family members to gather the information required in paragraph (5) of subdivision (a) of Section 224.2 . . . . (Italics added.)

Section 224.2, subdivision (a)(5) provides in relevant part: In addition to the information specified in other sections of this article, notice shall include all of the following information: [] (A) The name, birthdate, and birthplace of the Indian child, if known. [] (B) The name of the Indian tribe in which the child is a member or may be eligible for membership, if known. [] (C) All names known of the Indian childs biological parents, grandparents, and great-grandparents, or Indian custodians, including maiden, married and former names or aliases, as well as their current and former addresses, birthdates, places of birth and death, tribal enrollment numbers, and any other identifying information, if known. (Italics added.)

Although Father failed to give the social worker all the information specified in section 224.2, subdivision (a)(5), he at least implied that the paternal grandmother could provide the information. The social worker thus had an affirmative and continuing duty to interview extended family members, including the paternal grandmother, in order to gather the information required. ( 224.3, subds. (a), (c).) The social workers failure to do so after the statutes effective date and prior to the section 366.26 hearing renders the ICWA notice inadequate.^[5]

On remand, the juvenile court shall direct the Department to conduct the inquiry and provide the notice required by sections 224.2 and 224.3. Thereafter, the court shall proceed in a manner consistent with the responses to the notice.

DISPOSITION

The order terminating parental rights is vacated and the matter is remanded for the purpose of providing adequate ICWA notice to the three Cherokee tribes. If any tribe responds that the children are Indian children or eligible for enrollment, the court shall proceed as required by the ICWA. If all tribes respond that neither child is an Indian child or eligible for enrollment, the court shall reinstate the order terminating parental rights.

BUTZ , J.

We concur:

BLEASE , Acting P.J.

HULL , J.

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^[1] Father later joined in Mothers appellate briefs. For purposes of our decision and judicial economy, we ordered the two matters consolidated, with each appeal to retain its own number.

^[2] Undesignated statutory references are to the Welfare and Institutions Code.

^[3] The section 366.26 report included a June 19, 2007 medical evaluation of S.B. The evaluation quoted the previous foster mothers assertion that S.B. was difficult to deal with in that he gets angry easily, strikes out and does not seem to show any remorse.

^[4] The foster family agencys assessment was conducted in October 2007. Nothing in the record suggests the agencys finding of decreased severity was based on the November 2006 mental health assessment, which the previous foster mother subsequently disputed.

^[5] Mother quotes section 224.3, subdivision (c) in her opening brief. Curiously, the Department neither cites nor discusses the statute in its brief. Any claim that the statute does not apply to this case is forfeited. (E.g., Peoplev.Hardy (1992) 2 Cal.4th 86, 150; Peoplev.Wharton (1991) 53 Cal.3d 522, 563.)