In re E.N.

Filed 2/4/09 In re E.N. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

(Sacramento)

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Appellant K. N., Jr., the father[1] of E. N., T. N. and K. N., III (the minors), appeals from an order of the juvenile court terminating parental rights. (Welf. & Inst. Code,  366.26, 395.)[2] Because of lack of compliance with the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. 1901, et seq.), we will reverse and remand the matter to the trial court.

Appellant contends (1) the juvenile court erred in finding the minors were not Indian children because the notices sent to the Indian tribes and the Bureau of Indian Affairs (BIA) failed to comply with ICWA, and (2) there is insufficient evidence to support the juvenile courts finding of adoptability. The Sacramento County Department of Health and Human Services (the Department) concedes that the notices were insufficient under ICWA, but argues there is substantial evidence that the minors are adoptable. We agree that the provisions of ICWA were not satisfied. Thus, we reverse the order terminating parental rights and remand for further proceedings regarding ICWA. As to appellants second claim, however, we affirm the order finding the minors adoptable.

FACTUAL AND PROCEDURAL BACKGROUND[3]

In November 2006, the minors,[4] all under the age of three, were detained due to the mothers ongoing substance abuse and failure to comply with her informal supervision case plan.[5] K. N, III and E. N. were initially placed in protective custody at the Crisis Nursery, and T. N. at the Childrens Receiving Home.

The Department filed a juvenile dependency petition alleging the minors were at substantial risk of serious harm due to the mothers substance abuse and failure to rehabilitate, and subsequently amended the petition to include allegations of appellants failure to rehabilitate and anger management problems resulting in acts of domestic violence against the mother in the presence of the minors. At the November 29, 2006 detention hearing, the court found prima facie evidence to support the allegations in the petition.

In December 2006, the minors were placed together in a foster care home.

In April 2007, the juvenile court sustained the allegations in the second amended petition and adjudged the minors dependent children of the court within the meaning of section 300. Both appellant and the mother were ordered to participate in a program of professional counseling.

In May 2007, the minors were moved to a new foster home.

At the permanency hearing in August 2007, the court: terminated reunification services for both parents, found the minors were likely to be adopted, and found adoption to be the appropriate permanent plan.

The December 2007 selection and implementation report concluded the minors were specifically adoptable due to the fact that they are a sibling set, and recommended termination of parental rights and identification of adoption as the permanent plan.

Appellant filed a motion to modify the courts order pursuant to section 388 seeking continuation of reunification services.

At the selection and implementation hearing held in February 2008, the court found the minors adoptable based on their ages and the lack of any significant physical, mental or behavioral problems, and terminated parental rights.

In January 2008, the foster parent was evicted from her home and the minors were moved to a new foster placement.

In a February 2008 addendum report, the Department amended its earlier finding that the minors were specifically adoptable to a finding that they were generally adoptable due, in part, to the fact that the minors are under six years of age and in good health.

A second February 2008 addendum report states the minors were again moved to a new foster home due to the then-current foster parents inability to provide adequate daycare. The new foster parent expressed an interest in adopting the minors and, according to the Department, appeared to be ready, willing and able to care for them.

At a February 2008 hearing, the court denied appellants section 388 motion, and terminated the parental rights of both parents.

DISCUSSION

I.

Failure to Comply with ICWA Notice Requirements

Appellant contends, and the Department concedes, that the Department failed to provide adequate notice pursuant to ICWA. We agree.

ICWA Background

Neither parent was present at the November 2006 detention hearing. The juvenile court made no findings regarding the applicability of ICWA.

According to a December 2006 ICWA declaration, all attempts by the Department to contact the minors maternal relatives were unsuccessful. The notice of the proceedings (form JV 135) sent to the BIA included both parents names, addresses and dates of birth, but incorrectly identified appellant as K. N., Sr. instead of K. N., Jr. The notice also provided the names of the maternal grandmother and the maternal great-grandmother, but gave no other information.

The mother was interviewed in early December 2006. She stated she had some American Indian heritage, but did not know what kind. A late December 2006 report states that ICWA may apply, noting the Department has complied with the ICWA notice provisions . . . .

At the January 2007 disposition hearing, the court acknowledged receipt of information of the minors possible Indian heritage, ordered the Department to notice the appropriate tribes and ordered appellant to complete and return the Indian ancestry questionnaire.

Return receipt from the BIA was filed in February 2007.

Later in February 2007, after the BIA receipt was filed, appellant filed documentation indicating his potential membership in the Charrokee (sic) Indian tribe. The court ordered the Department to notice the appropriate tribes.

Thereafter, in February 2007, the Department filed a declaration with an attached notice of involuntary child custody proceedings for an Indian child (form JV-135) setting forth the minors names, birthdates and birthplaces, the Cherokee Indian tribe with which the minors are believed to be affiliated, appellants name,[6] address, birthdate and tribe, the mothers name, address, birthdate and birthplace, and the names of the paternal and maternal grandmothers. The declaration attested to the social workers unsuccessful attempts to contact the minors mother and maternal grandmother, but stated she was able to reach the paternal grandmother, who indicated there was no Native American ancestry on her side of the family.

The addendum report, filed in early March 2007, identifies the paternal grandmother and maternal grandfather. The report notes that the social worker made contact with both of them to discuss appellants and the mothers whereabouts.

In mid March 2007, the Department filed a declaration regarding its ICWA investigation, stating notices had been sent to three Cherokee tribes and the BIA based on information provided by the paternal grandmother. Return receipts from the tribes and the BIA were filed with the court in March 2007.

The Department filed another declaration in April 2007, attached to which were the responses from the tribes indicating the minors were not Indian children.

At the disposition hearing in April 2007, the juvenile court found ICWA inquiry was timely and properly made and concluded the minors were not Indian children for purposes of ICWA.

Analysis

ICWA provides, in part: In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. (25 U.S.C. 1912(a).) The Indian status of a child need not be certain or conclusive to trigger the ICWAs notice requirements. (In re Desiree F. (2000) 83 Cal.App.4th 460, 471.) California Rules of Court, rule 5.481,[7] contains identical requirements. (Rule 5.481(b).)

The Department and the juvenile court have an affirmative and continuing duty to inquire whether a child who is subject to the proceedings is, or may be, an Indian child. (Rule 5.481(a).) If, after the petition is filed, the court knows or has reason to know that an Indian child is involved, notice of the pending proceeding and the right to intervene must be sent to the tribe, or the Bureau of Indian Affairs if the tribal affiliation is not known. (25 U.S.C.  1912; Rule 5.481(b).) Failure to comply with the notice provisions and determine whether the ICWA applies is prejudicial error. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424; In re Desiree F., supra, 83 Cal.App.4th at p. 472.)

The initial information provided by the mother indicated the possibility of Indian heritage. Subsequent information from appellant confirmed the possibility that some or all of the minors might have Cherokee heritage.

The first notice of involuntary child custody proceedings was sent to the BIA in December 2006. That notice identifies by name only maternal great-grandmother, Berti B. and grandmother, Sheila H., despite information known to the Department regarding the birthdate and birthplace of both appellant and the mother, and the names, addresses and telephone numbers of both the paternal grandmother, Felicia B., and the maternal great-grandmother, Berti B. The notice also incorrectly identifies appellant as K. N., Sr., although there is no evidence in the record that the discrepancy was known to the Department at that time.

In early February 2007, the Department learned that appellant had possible Cherokee heritage. Appellant also provided the name and telephone number of the paternal grandmother, Felicia B., and filed with the court a completed parentage inquiry form identifying himself as K. N., Jr.

The second notice of involuntary child custody proceedings was sent to the BIA and the Cherokee tribes in late February 2007. That notice was again deficient. It again incorrectly refers to appellant as K. N., Sr., states his birthplace as unknown, and identifies by name only maternal grandmother, Sheila H., and maternal great-grandmother, Berti B. It failed to provide the telephone number of Felicia B., the paternal grandmother. The notice also failed to identify the maternal great-grandfather, Donnie B., with whom the social worker had spoken by telephone one week earlier. Nor did the notice provide the name of the paternal grandfather, K. N., Sr., as noted in appellants questionnaire.

Given the inadequate notice, we conclude the court erroneously proceeded to determine jurisdiction and terminate parental rights. (In re Kahlen W., supra, 233 Cal.App.3d at p. 1424.) The failure to provide the necessary notice constitutes prejudicial error, requiring this court to remand the case for further ICWA inquiry. (Id. at p. 1426.)

II.

The Courts Finding of Adoptability is Supported by Substantial Evidence

Appellant contends the evidence was insufficient to find that the minors were specifically adoptable, arguing the finding was dependent upon the minors medical, developmental, scholastic, mental, and emotional status, as well as a likelihood they will be adopted if parental rights are terminated. We disagree with appellants characterization of the courts finding and his view of the evidence. The juvenile court found the minors to be generally adoptable, and substantial evidence supports the finding.

Background

The December 2006 report states the minors were placed into protective custody in April 2006 due to medical neglect[,] domestic violence and lack of supervision. Prior to placement, T. N. and K. N., III were both found to have no known medical conditions or allergies. E. N. was diagnosed with bronchitis six weeks prior to being placed in protective custody, and was prescribed medication to treat the problem. At the time of placement, T. N. and K. N., III were diagnosed with upper respiratory infections and tuberculosis. E. N. continued to suffer from congestion. All three minors were prescribed medication to treat their conditions. By December 2006, T. N. had taken daily medication for her tuberculosis and was no longer contagious.

In May 2007, the foster parent gave a notice that she was no longer . . . capable of managing the behaviors of [E. N.s] siblings. The minors were placed in a new foster home in May 2007 and were adjusting well. As of December 2007, E. N. was in good overall health but suffered from anemia and asthma. The foster parent was addressing those problems with nutrition and medicine as needed. E. N.s immunizations were up to date. E. N. was also reaching appropriate developmental milestones for his age group, and had graduated from crawling to walking.

K. N., III, was also doing well after the May 2007 transition, blending into the family unit and bonding with the foster parent. The previous foster parent had concerns about K. N., IIIs excessive use of profanity, his fear of baths and the fact that he appeared to be delayed with some of his motor skills. However, the current foster parent observed no such delays, reported K. N., IIIs fears had subsided and noted that K. N., III continued to work on expressing himself more appropriately. K. N., III was also being taught not to touch females in inappropriate places and was being closely supervised in that regard. A pediatrician found K. N., III to be in overall good health but suffering from anemia and low iron, for which he was prescribed iron-rich foods and iron pills. According to the urologist, K. N., III also suffered from chronic infections on his penis due to excessive foreskin. Circumcision was recommended and although the mother gave verbal consent to the procedure, her written consent was not obtained as of the report date.

T. N., also, was adjusting well to the new placement and was reported to be relaxed and comfortable in her new environment and bonding well with her foster family. T. N. reportedly parents her younger siblings, but is assured she can just be a child, and that the foster mother will take care of everyone. According to the pediatrician, T. N. is still required to take medication after being diagnosed with tuberculosis, but is otherwise in good health and up to date on her immunizations. Blood work was ordered to determine whether T. N. was also anemic. T. N. was reportedly meeting the appropriate developmental milestones for her age and no longer wetting the bed at night.

The December 2007 selection and implementation report stated the minors had been in their current foster home since June 2007 and were doing well. All three minors were last examined by a doctor in June 2007 and found to be in good health. E. N. and K. N., III were current on all immunizations, and T. N. was getting . . . caught up on hers. It was noted that E. N. had a history of asthma for which he has an inhaler, and that T. N. was being treated for tuberculosis. K. N., III and T. N. were meeting developmental milestones, while E. N. appears to be slower in doing so. K. N., III was not yet toilet trained, but was talking, walking and running. Although he was reportedly no longer swearing, he still told others to shut up on occasion. All three minors were found to be intellectually on target for their age, and none were reported to have any significant behavioral issues.

According to the December 2007 quarterly report written by the foster family agency, K. N., III was last examined by a doctor in September 2007 and found to be in good overall health. The current foster parent found no delay in his motor skills, as reported by the previous foster parent, but reported that K. N., III remains resistant to potty training. While the minor had been making progress expressing himself without rudeness or profanity, he regressed to his previous behaviors after visits with appellant.

T. N. was last examined by a doctor in July 2007 and was reported to be in good overall health. T. N. tested positive for tuberculosis in January 2007, but is not contagious. She is taking medication daily to treat the tuberculosis, and will continue to do so for six months. T. N. is also receiving regular immunizations. The foster parent reports that T. N. has regressed behaviorally after visits with appellant, wetting her pants, urinating on the carpet in her room in the same spot at night, purposefully defecating on the floor, and rummaging through her foster parents purse and rooms looking for gum and candy. T. N. has also become fearful of staying in her own room alone and often goes into the foster parents room for comfort.

E. N. was last examined by a doctor in July 2007 and found to be in good overall health. He continues to adjust well to his foster home, and has no behavioral issues.

Analysis

In order . . . to terminate parental rights under section 366.26, the 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;  366.26, subd. (c)(1).) 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. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)

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 Asia L., supra, 107 Cal.App.4th at p. 510, italics omitted.)

We review the termination order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find clear and convincing evidence the minor was likely to be adopted. (In re Asia L., supra, 107 Cal.App.4th at pp. 509-510.) We find such evidence here. On the whole, all three minors appear to be in relatively good physical, mental and emotional health, with only minor needs that are being addressed by the foster family with whom they live. The minors have each had recent medical examinations and are taking medication to treat any remaining respiratory problems. The foster families, both past and current, have been serving the minors an iron-rich diet to address their anemia, and all immunizations are up to date. Each minor is adjusting well to the new placement, and there are no significant behavioral issues outstanding aside from the reported regressive behavior of K. N., III and T. N. after visits by appellant. The foster familys desire to adopt all three children is further evidence of the adoptability of the minors. On this record, the juvenile court reasonably could find, as it did, that although the minors may present some challenges to their prospective adoptive family, they are likely to be adopted. (Cf. In re RoderickU. (1993) 14 Cal.App.4th 1543, 1550.)

Arguing the juvenile court found the minors to be specifically adoptable, appellant asserts the assessment lacked evidence of the nature and extent of the minors relationship to the prospective adoptive parent, or the prospective adoptive parents motivation for seeking adoption. As we indicated earlier, the juvenile court found the minors to be generally adoptable. As such, questions regarding the suitability of prospective adoptive parents are irrelevant to the issue of the minors adoptability and should be reserved for the subsequent adoption proceeding. (In re T. S. (2003) 113 Cal.App.4th 1323, 1328-1329; Cf. In re Scott M. (1993) 13 Cal.App.4th 839, 844.)

Appellant also urges that the number of foster placements is indicative of medical and behavioral problems affecting the minors adoptability. The record demonstrates otherwise. While one of the early foster parents had difficulty managing the behaviors of two of the minors, there is nothing in the record to suggest subsequent placement changes were a result of either behavioral issues or medical problems. Indeed, by all accounts, the minors adjusted well to each placement, responding to a more structured environment and consistent medical treatment.

The juvenile court based its finding of adoptability on the findings in the reports, namely that all three minors were young and had no significant health or behavioral problems. Those findings support the juvenile courts finding of adoptability. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) We find no error.

DISPOSITION

The order terminating parental rights is vacated, and the matter is remanded to the juvenile court with directions to order the Department to make proper inquiry and to comply with the notice provisions of ICWA. If, after proper inquiry and notice, the BIA or a tribe determines that the minors are Indian children as defined by ICWA, the juvenile court is ordered to conduct a new section 366.26 hearing in conformity with all provisions of ICWA.

If no Indian heritage is disclosed or if, after notice, it is determined that the minors are not Indian children, the order terminating parental rights shall be reinstated.

CANTIL-SAKAUYE , J.

We concur:

NICHOLSON , Acting P. J.

RAYE , J.

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[1] Appellant was found to be the presumed father of T. N., and the alleged father of E. N. and K. N., III.

[2] Hereafter, undesignated statutory references are to the Welfare and Institutions Code.

[3] We address the ICWA issue and pertinent facts post in the Discussion section.

[4] At the time of detention, E. N. was eight months old, K. N., III was one and a half years old, and T. N. was two and a half years old.

[5] Appellant was incarcerated at the time, having been convicted of domestic violence charges.

[6] Appellants name is again erroneously shown as K. N., Sr. instead of K. N., Jr.

[7] Hereafter, references to rules are to the California Rules of Court.