In re K.D.
Filed 12/15/08 In re K.D. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re K.D. et al., Persons Coming Under the Juvenile Court Law. | |
RIVERSIDE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. A.S., Defendant and Appellant. | E045761 (Super.Ct.No. RIJ107053) OPINION |
APPEAL from the Superior Court of Riverside County. Robert M. Padia, Temporary Judge. (Pursuant to Cal. Const., art. VI, 21.) Affirmed.
Michael D. Randall, under appointment by the Court of Appeal, for Defendant and Appellant.
Joe S. Rank, County Counsel, and Sophia H. Choi, Deputy County Counsel, for Plaintiff and Respondent.
Sharon S. Rollo, under appointment by the Court of Appeal, for Minors.
A.S. (hereafter mother) appeals from the trial courts order under Welfare and Institutions Code section 366.26[1]terminating her parental rights to four of her five children.[2] Mother contends that the orders must be reversed as to all four children because the trial court did not comply with the notice requirements of the Indian Child Welfare Act (25 U.S.C. 1901 et seq.; hereafter ICWA), and with respect to the three oldest children, the evidence does not support the trial courts finding that they are adoptable. We conclude, as we explain below, that any error with regard to the notice required by ICWA was harmless, and substantial evidence supports the trial courts adoptability finding. Therefore, we will affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The issues raised in this appeal require only an abbreviated recitation of the pertinent facts. It is sufficient to note that mother has a substance abuse issue and as a result has been involved in the dependency process since December 8, 2003, when Riverside County Department of Public Social Services (DPSS) filed a section 300 petition with respect to her children, K. and N. DPSS placed both children in mothers care under a family maintenance plan. Mother gave birth to E. in December 2004, and DPSS filed a section 300 petition with respect to E. on January 21, 2005. DPSS filed another section 300 petition on January 4, 2006, after mother tested positive for a controlled substance after giving birth to M.
Although mother received reunification services with respect to each child, she failed to make adequate progress. In the meantime, DPSS removed K., N., and E. from their placement with their maternal grandmother because she had allowed mother unsupervised contact with the children. DPSS placed all three children in the home of E.s paternal grandparents. After M. was born, DPSS removed K. and N. from their placement with E.s paternal grandparents. Eventually, DPSS placed, K., N., and M. in the same foster home, while E. remained with the paternal grandparents. On September 6, 2006, the trial court held a combined six-month review hearing on M.s petition and an 18-month review hearing on the petitions regarding the other three children. At that hearing the trial court terminated mothers reunification services with respect to all four children because mother had not made satisfactory progress on her reunification plan. At a hearing on April 16, 2008, the trial court terminated mothers parental rights with respect to all four children, after making the required findings, including the finding that the children are likely to be adopted.
1.
ICWA NOTICE
Mother contends that the orders terminating her parental rights to K., N., E., and M. must be reversed because DPSS failed to comply with the notice provisions of ICWA which require, when a child subject to a dependency proceeding is or may be of Native American ancestry (referred to in the ICWA as an Indian child), that each tribe of which the child may be a member or eligible for membership must be notified of the dependency proceeding and of the tribes right to intervene in the proceeding. (25 U.S.C. 1912(a).) An Indian child for purposes of ICWA is any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. (25 U.S.C. 1903(4).) A determination by an Indian tribe that a child is or is not a member of or eligible for membership in that tribe, . . . shall be conclusive. ( 224.3, subd. (e)(1).)
The Native American ancestry of the children was not raised in 2003 when DPSS filed the section 300 petition with respect to K. and N. because, as noted above, the trial court did not remove the children from mother, and instead placed them both with mother under a family maintenance plan, in accordance with the recommendation of DPSS. The question of Native American ancestry arose when DPSS filed a section 300 petition regarding E. At that time mother stated that E. does not have Native American Indian heritage. In the dependency proceeding initiated after mother gave birth to M., mother stated she did not have Native American ancestry.
Mother did not claim Native American ancestry until she gave birth to S. in 2008. According to the social workers report prepared for the March 5, 2008, detention hearing on that petition mother claimed that S.s maternal great-grandfather (mothers grandfather) is full Yaqui. DPSS gave notice as required by ICWA to the pertinent agencies and entities, including the Pascua Yaqui tribal council, regarding the dependency of S. Because the children all have the same mother, and therefore have the same claimed Native American ancestry, mother contends DPSS should have given ICWA notice with respect to the dependency proceedings involving K., N., E., and M., and failure to do so requires reversal of the order terminating her parental rights. Mother also claims the ICWA notice regarding S. is deficient.
Although we disagree with mothers various claims, we will not address them. Instead, we grant the request of DPSS to take judicial notice of the response from the Pascua Yaqui tribe to the ICWA notice sent regarding S.[3]and hereby take judicial notice of the fact that the Pascua Yaqui tribe responded to the ICWA notice regarding S., and stated that S. is not eligible for membership in the tribe based on the family information provided. The record on appeal includes the actual ICWA notice DPSS sent to the tribe, and that notice identifies J.V., his birth date, and his tribal affiliation (Pascua Yaqui).[4] Because the notice includes the name of, and pertinent information known about, the ancestor through whom mother and thus the children claim Native American ancestry, the tribes response to that notice necessarily applies to all of mothers children. Accordingly, we conclude that if DPSS was required to give ICWA notice regarding K., N., E., and M. any error in failing to do necessarily was harmless in view of the Pascua Yaquis response to the ICWA notice sent regarding S.
2.
ADOPTABILITY FINDING
Mothers other claim is that the evidence does not support the trial courts finding that K., N., and M. are adoptable.[5] Specifically, mother contends that K. has emotional problems that make K. unadoptable and because the three children have been declared a sibling set, N. and M. are also unadoptable. We do not share mothers view of the record.
As a prerequisite to termination of parental rights under section 366.26, a court must find by clear and convincing evidence that the children are likely to be adopted. ( 366.26, subd. (c)(1); Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 249-250.) On appeal, we review the factual basis for the trial courts finding of adoptability and termination of parental rights for substantial evidence. [Citation.] We therefore 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. [Citation.] (In re Josue G. (2003) 106 Cal.App.4th 725, 732.)
The issue of adoptability posed in a section 366.26 hearing 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.] (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; see also In re Zeth S. (2003) 31 Cal.4th 396, 406.) 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., supra, at pp. 1649-1650.)
The evidence presented in the trial court includes not only the social workers opinion[6]that the children are adoptable but also the fact that in August 2007, DPSS placed the children with prospective adoptive parents.[7] The preliminary assessment of the identified adoptive family indicates that K. has emotional and behavioral problems and is in therapy to address those issues. The therapist diagnosed K. with reactive attachment disorder. Despite the diagnosis, K.s adoptive parents are committed to having [K.] remain in their home and do love [K.] immensely.
That evidence is sufficient to support the trial courts finding that K. is adoptable. Because we conclude the evidence is sufficient to support the trial courts finding that K. is adoptable, we must reject mothers challenge to adoptability findings regarding N. and M. because that challenge is derivative of her claim regarding K., as previously noted.
DISPOSITION
The order terminating mothers parental rights to K., N., M., and E. is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
/s/ McKinster
Acting P.J.
We concur:
/s/ Richli
J.
/s/ King
J.
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[1]All further statutory references are to the Welfare and Institutions Code unless indicated otherwise.
[2]Mother gave birth to S. in February 2008, only weeks before the selection and implementation hearing at issue in this appeal. Although S. is also the subject of a dependency proceeding, S. is not involved in this appeal.
[3]Mother claims the notice was incorrectly addressed, but that error is irrelevant because the tribe actually received the notice, as evidenced by the fact that the tribe responded.
[4]The notice identifies J.V. as mothers father when he apparently is her grandfather.
[5]Mother does not challenge the trial courts finding that E. is adoptable.
[6]Mother cites In re Brian P. (2002) 99 Cal.App.4th 616, 624, for the principle that, A social workers opinion, by itself, is not sufficient to support a finding of adoptability. Here, we not only have the opinion of the social worker, we also have a family willing to adopt all three children. That latter fact distinguishes this case from In re Brian P.
[7]The social workers report identifies the date of placement as September 5, 2007.
