In re Elliot P.

Filed 5/21/08 In re Elliot P. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

APPEAL from the Superior Court of Riverside County. Robert M. Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.

Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant.

Joe S. Rank, County Counsel, and Anna M. Deckert, Deputy County Counsel, for Plaintiff and Respondent.

Nicole Williams, under appointment by the Court of Appeal, for Minor.

Kristie P. (Mother) appeals from the juvenile courts order under Welfare and Institutions Code^[1]section 366.26 terminating her parental rights to her son, Elliot. She contends the juvenile court failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C.  1901 et seq.) and there is insufficient evidence to show that Elliot is adoptable.

I. PROCEDURAL BACKGROUND AND FACTS

On October 3, 2005, the Department of Public Social Services (the Department) received an immediate response referral following Mothers hospitalization for congestive heart failure. Mother has a history of substance abuse and methamphetamine use. Prior to her hospitalization, Mother had been staying in a shelter with her middle child, Christopher D. (born November 1994). Her other two children, Elliot (born June 2003) and Clyde D. (born September 1989) were staying at the home of a family friend who had a history of methamphetamine use, as well as a child protective services history.^[2] Elliot did not have regular health or dental care. Mother identified Rolland R. (Father) as the father. Fathers whereabouts were unknown and he had not provided for Elliot.

On October 4, 2005, Mother claimed that Elliot might have Indian ancestry with the Chickasaw Nation Tribe on Fathers side of the family. The social worker notified the identified Indian tribe and the Bureau of Indian Affairs (BIA); however, the notice was not filed with the juvenile court. The child was taken into protective custody and dependency proceedings were initiated. A jurisdiction/disposition hearing was set for October 27, 2005.

On October 25, 2005, the Department filed its jurisdiction/disposition report. The report recommended that Elliot be declared a dependent of the court pursuant to section 300, subdivisions (b) and (g), that Mother be offered reunification services, and that Father be denied reunification services. According to the report, Elliot had severe tooth decay but appeared to be within the normal limits of physical and cognitive development. He displayed angry behaviors, but was adjusting to his foster home placement.

On November 17, 2005, Mother filed the Parental Notification of Indian Status, wherein she marked the box that indicated, I have no Indian ancestry as far as I know. In the December 15, 2005, addendum report, the Department changed its prior recommendation and requested that Mother be denied reunification services pursuant to section 361.5, subdivision (b)(10), based on the previous termination of the services granted her with respect to other children. The Department also noted that with respect to the Chickasaw Nation, ICWA did not apply. We note that it was the father of Mothers other children who had claimed possible Indian ancestry with the Chickasaw Nation.

A contested jurisdiction hearing was held on January 31, 2006. The court found the amended allegations of the petition to be true and that proper notice had been given pursuant to ICWA. A disposition hearing was set.

In the March 20, 2006, addendum report, the Department changed its prior recommendation from not offering to offering reunification services to Mother. On April 10, 2006, at the contested disposition hearing, the court denied reunification services to Father but authorized services for Mother. The court found that ICWA did not apply. A six-month review hearing was set for July 19, 2006.

In the six-month review report, the Department recommended that reunification services for Mother be terminated as to Elliot. Elliot was a healthy three-year-old boy who was on track developmentally. He had undergone extensive dental treatment. Although he appeared to be close to his mother during visits, he had also bonded to his foster family and adjusted to his living conditions. The foster parents commented about adopting him in the event Mother was unable to reunite with him. Thus, the Department reported that Elliot is adoptable.

A contested review hearing was held on August 22, 2006. Reunification services were continued, and a 12-month review hearing was set for December 12, 2006.

In the 12-month review report, the Department recommended that reunification services be terminated as to Mother and that a section 366.26 hearing be set in 120 days to establish a permanent plan of adoption for Elliot. Elliot was described as a very friendly and energetic three-year-old child. He was developmentally on track. He referred to his foster parents as mom and dad. Although services were provided to Mother, she ha[d] yet to provide proof that she [was] enroll[ed] in any of the programs. Due to Mothers failure to participate in her case plan services, visitation remained in a controlled environment to ensure Elliots safety.

On December 12, 2006, the court terminated reunification services to Mother. The court found adoption as the appropriate permanency plan for Elliot and set a section 366.26 hearing.

On March 29, 2007, the Department filed its section 366.26 report. It recommended termination of parental rights and adoption as the appropriate permanent plan for Elliot. The report stated that ICWA did not apply. Elliot was described as a happy, well-adjusted child who had bonded with his foster parents. He did not display any developmental delays. The Department further identified the prospective adoptive parents. In the preliminary assessment for the identified prospective adoptive parents, the Department noted that Elliot had been living with them for almost one year.

Elliot had displayed aggressive and poor behaviors following visits with Mother. A reduction in the amount of visits seemed to also reduce the poor behaviors. However, following a visit on March 13, 2007, Elliot engaged in an aggressive outburst that resulted in a referral for psychological assessment. The assessment concluded, in part, that Elliot displayed characteristics of being drug exposed and that his multiple placements had exacerbated learning problems. Elliots crying may have been a reaction to trauma exposure. The examiner opined that early intervention can minimize Elliots above-described characteristics as he matures. The examiner further commented that the childs caregiver was diligently striving to establish a strong bond and facilitate Elliots developmental growth.

On June 12, 2007, the court commenced the section 366.26 hearing. Mother did not make any objection to the evidence, nor did she offer any affirmative evidence. Mother was not present at the hearing; however, her attorney objected to adoption, without a basis, and sought a less restrictive plan. The court terminated parental rights and found Elliot to be adoptable. Mother appeals.

II. ICWA

Mother challenges the juvenile courts finding that ICWA did not apply on the grounds that there was a suggestion that Elliot had Indian ancestry and that the noticing documents were not filed with the juvenile court pursuant to ICWA. The Department faults Mothers challenge for relying on information in the initial detention report, which it claims misstated Elliots ancestry. The Department argues that the error was corrected by the evidence set forth in the jurisdiction/disposition report.

The detention report filed on October 5, 2005, noted Mother had stated that Elliot may have possible Indian ancestry in the Chickasaw Nation from Oklahoma via Fathers heritage. However, the jurisdiction/disposition report, filed on October 25, 2005, noted it was Clyde D., the father of Elliots older brothers, who had the possible Chickasaw Indian ancestry via his grandfathers membership in the tribe. Since Clyde D. was not Elliots father, the Department argues that it took the position that any issue regarding ICWA related only to the two older brothers and did not involve Elliot. There is no evidence in the record that Mother ever objected to the fact that Elliot was not included in any subsequent reporting and/or evidence addressing ICWA.

ICWA itself does not expressly impose any duty to inquire as to Indian ancestry. Neither do the controlling federal regulations. (See 25 C.F.R.  23.11(a) (1994).) A federal source for a duty of inquiry is the federal Guidelines for State Courts (Guidelines) (44 Fed.Reg. 67584 (Nov. 26, 1979)). (See In re S.B. (2005) 130 Cal.App.4th 1148, 1156-1158.) The Guidelines require the state court [to] make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe. (In re S.B., supra, at p. 1158, quoting Guidelines,  B.5.a, 44 Fed.Reg. 67588 (Nov. 26, 1979).) However, the Guidelines expressly provide they are not intended to have binding legislative effect. (In re S.B., supra, at p. 1157.)

ICWA also provides that states may provide a higher standard of protection to the rights of the parent . . . of an Indian child than the rights provided under [ICWA]. (25 U.S.C.A.  1921.) Consistent with this provision, California law imposes on county welfare departments and the juvenile court 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 for purposes of ICWA. ( 224.3, subd. (a); see also Cal. Rules of Court, former rule 5.664(d).)^[3] Specifically, In dependency cases, the social worker must ask the child, if the child is old enough, and the parents or legal guardians whether the child may be an Indian child or may have Indian ancestors. (Cal. Rules of Court, former rule 5.664(d)(2).) In addition, At the first appearance by a parent . . . in any dependency case, . . . the parent or guardian must be ordered to complete Parental Notification of Indian Status (Juvenile Court)(form JV-130). (Cal. Rules of Court, former rule 5.664(d)(3).)

ICWA defines an Indian child as any unmarried person who is under age 18 and is either (1) a member of an Indian tribe, or (2) eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. (25 U.S.C.A.  1903(4).) Welfare and Institutions Code section 224.2, subdivision (a), provides that notice is necessary under the same conditions as set forth within the United States Code and the Code of Federal Regulations; that the ICWA notice is only necessary if the inquiry has caused the court and the Department to know, or have reason to know, that the minor is an Indian child. As the Department points out, previously, the California Rules of Court required notice under broader circumstances. (Cal. Rules of Court, former rule 5.664(f).) However, the newly renumbered rules are more in alignment with the notice requirements set forth in the United States Code, the Code of Federal Regulations, and the Welfare and Institutions Code. Namely, California Rules of Court, rule 5.481(b)(1), provides for notice If it is known or there is reason to know that an Indian child is involved in a proceeding listed in rule 5.480 . . . the social worker . . . must send Notice of Child Custody Proceeding for Indian Child . . . .

Here, the Department agrees that initially Mother indicated that Father may have Indian ancestry; however, as time passed, more accurate information was provided. Father never participated in the proceedings. All we are told about Father is that he was a drug user who lived in Rubidoux and used to work for the carnival then he went to prison. He doesnt want Elliot. He tried to have him adopted. He told [Elliots older siblings] that he didnt want [Elliot]. Clyde D., the father of Elliots older siblings, was who had the possible Chickasaw Indian ancestry.^[4] The chance that both Father and Clyde D. had the exact same Indian ancestry is highly unlikely. Rather, we find it more plausible that the initial information about Father having Chickasaw ancestry was a misstatement that was clarified by the time of the jurisdiction hearing.^[5]

Notwithstanding the above, we assume that both the Department and the juvenile court erred in their inquiry and notice responsibilities regarding Elliot, because there is no evidence of what information was provided to the Chickasaw Tribe due to the fact that the notice was not filed with the juvenile court.^[6] Having made such assumption, we remain unable to disturb the juvenile courts order without a showing that Mother was prejudiced by the claimed error. (Cal. Const., art. VI,  13.) Because there is no suggestion by Mother that Elliot in fact has any Indian heritage, we find that she has failed to demonstrate the requisite prejudice.

In In re J.N. ( 2006) 138 Cal.App.4th 450, the agency conceded that the record did not show the ICWA inquiry requirements were complied with, but urged the court to find any error harmless, since there was nothing in the record to indicate that the mother had any Indian ancestry. The court, however, refuse[d] to speculate about what mothers response to any inquiry would be . . . . (In re J.N., supra, at p. 461.) Instead, the court made a limited reversal and remanded to the trial court to make the ICWA inquiry. (In re J.N., supra, at pp. 461-462.)

Declining to follow the procedure set forth in In re J.N., this court in In Rebecca R. (2006) 143 Cal.App.4th 1426, stated: The sole reason an appellate court is put into a position of speculation on the matter is the parents failure or refusal to tell us. Father complains that he was not asked below whether the child had any Indian heritage. Fair enough. But, there can be no prejudice unless, if he had been asked, father would have indicated that the child did (or may) have such ancestry. [] Father is here, now, before this court. There is nothing whatever which prevented him, in his briefing or otherwise, from removing any doubt or speculation. He should have made an offer of proof or other affirmative representation that, had he been asked, he would have been able to proffer some Indian connection sufficient to invoke the ICWA. He did not. [] In the absence of such a representation, the matter amounts to nothing more than trifling with the courts. [Citation.] The knowledge of any Indian connection is a matter wholly within the appealing parents knowledge and disclosure is a matter entirely within the parents present control. The ICWA is not a get out of jail free card dealt to parents of non-Indian children, allowing them to avoid a termination order by withholding secret knowledge, keeping an extra ace up their sleeves. Parents cannot spring the matter for the first time on appeal without at least showing their hands. (In re Rebecca R., supra, at p. 1431.) In the absence of an affirmative representation, the court concluded, there can be no prejudice and no miscarriage of justice requiring reversal. (Ibid.; see also In re N.E. (Feb. 29, 2008) 160 Cal.App.4th 766, 770-771.)

Here, as in In re Rebecca R., Mother has failed to show a miscarriage of justice. On November 17, 2005, the Parental Notification of Indian Status was filed with the court wherein Mother acknowledged that she did not have any Indian ancestry. Despite her initial claim that Elliot might have Indian ancestry with the Chickasaw Nation on Fathers side of the family, she never reiterated such claim. In fact, she never challenged any of the representations in any of the Departments reports, nor did she raise any objection in open court when the juvenile court found that ICWA did not apply. Moreover, there is nothing whatsoever that prevented Mother, in her briefing or otherwise, from removing any doubt or speculation as to the accuracy of her first claim that Elliot had the same Indian ancestry of his older siblings. The burden on an appealing parent to make an affirmative representation of Indian heritage is de minimis. (In Rebecca R., supra, 143 Cal.App.4th at p. 1431.) Here, Mother is merely relying on her single reference to possible Indian ancestry on Fathers part. This reference was made by Mother at a time when she was hospitalized for congestive heart failure, and when she was being questioned about all three of her children, not just Elliot. Since Mother has failed to make any affirmative representation, or explain how the reference to the Chickasaw Tribe was applicable to all three of her children, there can be no prejudice and no miscarriage of justice requiring reversal. (Ibid.) Under these circumstances, we reject Mothers challenge to the courts finding that ICWA did not apply.

III. ADOPTABILITY

Mother contends there is insufficient evidence to support the juvenile courts finding that Elliot was adoptable. We disagree.

The issue of adoptability requires the court to focus on the child, and whether the childs age, physical condition, and emotional state make it difficult to find a person willing to adopt. (In re Brian P. (2002) 99 Cal.App.4th 616, 624.) Usually, the fact that a prospective adoptive parent has expressed interest in adopting the minor is evidence that the minors age, physical condition, mental state, and other matters relating to the child are not likely to dissuade individuals from adopting the minor. In other words, a prospective adoptive parents willingness to adopt generally indicates the minor is likely to be adopted within a reasonable time either by the prospective adoptive parent or by some other family. [Citation.]. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649-1650.) We review the courts finding of adoptability for substantial evidence. (In re Brian P., supra, at pp. 623-624.)

Mother primarily relies upon the psychological report to support her contention. She argues that Elliot is not adoptable because he has a number of developmental and emotional problems that will require life-long care. She quotes extensively from the report, stating that Elliot was significantly impaired in an important area of life functioning which is affecting his ability to remain in permanent placement where he can attain strong, long-lasting emotional bonds with his family. She notes that he has severe socialization problems, poor judgment with his peers and cries easily and frequently. Further, Mother points out Elliots low verbal and performance IQ scores, and his exposure to drugs. She concludes that he was not generally adoptable because he was not developmentally on target as reported by the [social] worker[, and h]e had many special needs, some of which would extend into adulthood.

The Department faults Mothers analysis, arguing that she is relying on a section of the adoption assessment that was not the evaluators conclusions, but was to assist Elliots caretakers in assisting his developmental progress. We agree. Also, other evidence supports the courts finding of adoptability. The social worker observed that Elliot was relatively healthy, notwithstanding his dental and eye care treatment, and he appeared to be developmentally on track. Elliot was self-sufficient in feeding himself and was not taking any medications. He was friendly and energetic. He loved to sing and dance. The Department argues that the assessment did not contradict the social workers opinion, rather, it provided an explanation of Elliots limitations in his writing and verbal skills. We agree. As the evaluator concluded, such limitations or delays may even out with maturity.

The reason for the assessment was to explain Elliots acting out behavior following visits with Mother. The evaluator explained, Children who are exposed to poly-substances and are neglected often develop long-term psychological problems. The evaluator further explained how the behaviors will manifest in each stage of development. Nonetheless, the evaluator offered this conclusion: With early interventions, these delays may even out with maturity. The caretaker is working diligently to establish strong bonding with this child and works with him daily to facilitate his developmental growth.

Even if 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 parents adoption and whether he or she is able to meet the needs of the child. (In re Helen W. (2007) 150 Cal.App.4th 71, 80.) Here, the adoption assessment includes ample evidence concerning the prospective adoptive parents social history, their financial situation, and their understanding of the responsibilities of adoption. The prospective adoptive parents have previously adopted children, are familiar with the adoption process, and understand the level of commitment adoption requires. There is nothing in the record that suggests any legal impediment to adoption by the prospective adoptive parents. Viewing the evidence relevant to adoptability in its entirety, we hold that there is sufficient evidence to support the courts finding of adoptability.

IV. DISPOSITION

The order terminating parental rights is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

HOLLENHORST

Acting P. J.

We concur:

RICHLI

J.

KING

J.

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

^[2] Because this appeal concerns only Elliot, we will limit our discussion of the facts to those which only involve him.

^[3] Effective January 1, 2008, California Rules of Court, former rule 5.664, was revised and renumbered as rule 5.481. Because the issue of notification arose prior January 1, 2008, we will refer to the former rule.

^[4] The jurisdiction/disposition report filed October 25, 2005, notes The father, Clyde [D.], stated his grandfather, James Elton Bolen, was a member of the Chickasaw Tribe in Oklahoma and was listed on the 1926 original roll. He stated he is researching this further to obtain the roll number.

^[5] We note that minor disagrees with the Departments argument.

^[6] We note that on October 20, 2005, the Chickasaw Nation sent a letter to the Department advising that Christopher D., one of Elliots older siblings, was not listed in the tribal records.