In re L.C.
Filed 10/29/07 In re L.C. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re L.C., a Person Coming Under the Juvenile Court Law. | |
HUMBOLDT COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, Plaintiff and Respondent, v. DAN C., et al., Defendants and Appellants. | A116606 (Humboldt County Super. Ct. No. JV040163) |
In these appeals from the order terminating their parental rights to L.C., appellants Dan C. (father) and Michelle M. (mother) raise issues concerning compliance with the notice provisions of the Indian Child Welfare Act (ICWA). (25 U.S.C. 1901 et seq.) As well, they challenge the juvenile courts adoptability finding, assert that the beneficial exception to adoption applied but was not invoked, and argue that mothers Welfare and Institutions Code[1]section 388 petition should have been granted. The Humboldt County Department of Health and Human Services (Department) concedes that a limited reversal is required because ICWA notice documents were not filed with the juvenile court. Because we cannot make a complete assessment of the adequacy of notice due to this deficiency, a limited reversal and remand is in order. In all other respects we affirm the order.
I. BACKGROUND
A. Initial Proceedings
L.C. first came within the dependency system on August 27, 2004. At that time the Department filed a section 300 petition alleging failure to protect and sibling abuse. L., who was born in January 2003, was 19 months old.
As to mother, the petition alleged that substance abuse rendered her incapable of providing adequate care and supervision. Additionally, she had lost three children to adoption.
As to father, the petition alleged that L. was at risk of harm because his willingness and ability to provide care is unknown. Father was incarcerated in Susanville at the time. He had pled guilty to possession of a controlled substance, possession of a controlled substance for sale, allowing a place for selling and using a controlled substance, and transporting/selling a controlled substance.
Colleen Thornton, an Indian child welfare advocate, appeared for the Yurok tribe at the first hearing. Thereafter she sent the Department a letter acknowledging receipt of the notice on involuntary child welfare proceedings and concluding that L. was not eligible for enrollment because she was under 1/8 blood quantum.
Neither parent responded to notices for the contested jurisdictional hearing set for October 4, 2004. The juvenile court sustained the petition.
The Department filed a subsequent petition in November 2004, indicating that the whereabouts of mother and child were unknown and mother had failed to appear in court. The Department expressed concern that mother was not adequately meeting L.s medical needs, in that she had missed seven pediatric appointments and was behind on immunizations. Further, there was a possibility she was behind developmentally, especially in the area of speech.
L. was detained and placed in foster care. The court found that father qualified for presumed father status. An amended section 342 petition was filed in late November 2004 to continue the abuse of siblings allegations. The addendum report stated that mother had failed to comply with previous reunification plans for L.s half-siblings and thereby lost parental rights to three other children.
In December 2004 both parents submitted to jurisdiction on an amended petition.
The disposition report noted that father was Caucasian and did not present any tribes for consideration. The reporting social worker indicated that father was not able to identify any services that would be helpful to him. Father stated he had been arrested multiple times on drug-related charges but this was his first conviction and incarceration. He did not want L. placed with mother due to mothers drug use, and expressed he wanted L. placed with him upon his release from prison.
Mother likewise was unable to identify any services that would help her. She maintained that she was serious about reunifying with L. and felt bonded with her, something she did not feel in regards to her other children who were removed soon after birth. Information provided by her own mother that she used drugs, prostituted and was involved with a dangerous man were lies.
Following his release from prison, father completed a chemical dependency assessment. Some of his answers to questions indicated he was either withholding or minimizing information. Based on the self-report and two negative drug screens, he did not meet the criteria for a current diagnosis of substance dependence or abuse, although he did meet the criteria in the past.
Fathers amended case plan included provisions to stay free of illegal drugs and consistently, adequately and appropriately parent L. He was to obtain parenting classes, take steps to find housing, comply with required drug tests, and attend substance abuse support classes.
Father began visiting L. The foster parents reported that her behavior did not worsen after visits with father. The social worker was concerned, however, that father refused to change her diapers. He said she might be potty trained by the time she is returned to him, or he would hire someone to do the task. The social worker explained that changing diapers is part of parenting. In July 2005 the Department recommended six more months of family reunification for father to allow him time to become involved in L.s medical, developmental and counseling appointments and to learn how to handle day-to-day parenting skills.[2]
B. Six-month Review; Departments Section 388 Petition and Motion to Modify
The six-month report related that mother admitted continued use of heroin and prostituting. Visitation attendance was poor. After visits with mother or the maternal grandmother, L. engaged in increased acting-out and self-injurious behaviors.
The six-month review hearing took place on August 25, 2005. However, the court did not issue its ruling until December 6, 2005. The written order terminated reunification services to mother and ordered more services for father. Amendments to the case plan called for father to participate in L.s speech, occupational and parent-child interaction therapies.
Meanwhile, on November 23, 2005, father was arrested and ultimately incarcerated for maintaining a place where controlled substances were furnished or sold. Several days before receiving the courts December 2005 ruling, the Department petitioned under section 388 to modify the case plan to include a parenting assessment as part of a psychological evaluation for father; to discontinue his participation in all appointments related to L.s health and development; and to decrease visits and have visitation supervised. The proposed modifications were based on fathers delusional statements; expressions of concern for personal safety on the part of the assigned social workers and foster parents after contact with father; and the fact that L.s destructive and self-injurious behaviors were increasing after visits with him. The Department also moved for reconsideration of the courts ruling extending reunification another six months. Given fathers recent incarceration, there was no probability of reunification.
The report supporting the Departments section 388 petition documented fathers parenting deficits; his inability to attend to L.s needs without prompting; his troubling behavior and statements, including a threatening style of communication; and his inability to participate positively in L.s speech therapy or occupational therapy. Letters from L.s special education teacher, occupational therapist, speech therapist and the quarterly assessment report from Environmental Alternatives[3]and the foster parents revealed the extent of his disruptive and detrimental behavior in these various settings. For example, the Environmental Alternatives assessment reported that for several months father appeared hostile, angry, sarcastic and defensive. It was unclear if he understood any advice offered. He could not provide age appropriate play activities, even with suggestions. Father was hostile and aggressive with the foster parent. Finally, in connection with the investigation of the related dependency of his son, the social worker learned that father was receiving supplemental security income for brain damage.
Arraignment on the section 388 petition and an amended petition calling for termination of services to father was called on December 22, 2005. The minors counsel addressed the issue of visitation. Thereafter, the court suspended visitation pending a hearing.
C. 12-month Review; Hearing on Departments Petition and Motion
The previously scheduled 12-month uncontested review hearing was called on January 4, 2006. Attorneys for the minor and father spoke to the issue of visitation. The court would not modify the visitation suspension. The 12-month review was continued to trail the section 388 petition.
The Department filed a second amended section 388 petition on January 30, 2006, reflecting the fact that father had pled guilty and was sentenced to prison for one year, with credits.
The hearing on the Departments section 388 petition and motion for reconsideration was held March 8, 2006. Counsel for the Department stated the issues were moot and dropped both matters due to the fact that L. had been out of the home for 16 of the 22 months and the matter should be set for a 12-month review. Counsel for father raised the issue of suspended visitation. Counsel for minor and the Department argued that visitation would be harmful. The court maintained the status quo.
The 12-month review report included much of the substance and documentation included in the section 388 report. Additionally, a letter from the social worker who provided parent-child interaction therapy to L.s foster parents was appended. She attempted to include father in the training, but father did not show or call for the scheduled or rescheduled appointments. As well, the log maintained for supervised visits indicated that father was unsuccessful at interacting or playing with L.; gave her unhealthy snacks; talked about his issues; did not want to change diapers; demonstrated no ability to spend inside time with L.; was unable to gain control of her; and made derogatory comments about the foster parent situation causing the social worker to question his emotional judgment.
Also noted was the fact that father at this juncture had presented the Cherokee Tribe for consideration. Notices were sent to three Cherokee tribal organizations and the Bureau of Indian Affairs (BIA). Further, the report reviewed fathers noncompliance with his case plan and recommended that services be terminated. The report additionally recommended that the court find clear and convincing evidence that father had been convicted of a felony indicating parental unfitness.
The contested 12-month review took place on May 9, 2006. L., who was under age three when first detained, had been in foster care for 18 months. The court issued its written ruling on July 26, 2006. The court concluded that the Department made reasonable efforts to make it possible for L. to return home; father complied with the case plan and made minimal progress toward alleviating or mitigating the causes necessitating placement out of home; and visitation was detrimental to the child and thus was suspended. The court terminated reunification services to father and set the section 366.26 hearing.
Father filed a writ petition in this court challenging, among other matters, the order setting a section 366.26 hearing as to L. We denied the petition on the merits.
D. Section 366.26 Report and Hearing; Mothers Section 388 Petition
The permanency planning report revealed that mother had been incarcerated since November 2005 and L. had not visited either parent since that time. Attached to the report were responses from (1) the United Keetoowah Band of Cherokee Indians in Oklahoma, stating there was no evidence that L. was a descendant of anyone on its rolls and thus she was not eligible for enrollment; and (2) the Cherokee Nation, reporting that she was not considered an Indian child under the ICWA.
L. had been placed with her prospective adoptive family for over six months. Her emotional stability improved significantly during this placement, and problem behaviors decreased. According to L.s foster parents, the childs self-injurious behavior, sexual acting-out and attachment problems increased after visits with her father and his attendance at her developmental appointments, and decreased once visits with father stopped. They reported that these behavior problems no longer occurred.
The Adoptions Services Bureau of the Department of Social Services conducted a thorough adoption assessment, interviewing all key parties involved with her short life, including 10 meetings with L., and reviewing pertinent records. The bureau determined that L. was adoptable and recommended termination of parental rights.
Two weeks before the scheduled permanency planning hearing, mother filed a section 388 petition requesting that L. be placed with mothers third cousin, in a foster care or guardianship arrangement. The court summarily denied the petition because (1) it failed to state new evidence or changed circumstances; (2) it failed to show how the request would promote L.s best interest; and (3) placement with relative should be investigated but not appropriate to be ordered by Court at this stage of proceedings.
At the contested section 366.26 hearing, counsel for mother attempted to raise the issue of relative placement. The court ruled that relative placement was not an issue at that hearing and the section 388 petition had been denied for failure to show that such placement was in L.s interest. The court ruled that the ICWA did not apply, found by clear and convincing evidence that it was likely L. would be adopted, and terminated the parental rights of both parents. Each parent has appealed. Mother joins in the arguments presented by father.
II. DISCUSSION
A. Notice Issues Under the ICWA
1. Legal Framework
The ICWA entitles an Indian tribe[4]to intervene at any point in a state dependency action if the minor subject to the proceedings qualifies as an Indian child.[5] (25 U.S.C. 1911(c).) The tribe has exclusive authority to determine tribal membership or eligibility for membership. (Cal. Rules of Court,[6]rule 5.664(g).)
A tribes right to intervene requires that it have notice of the proceedings. Actual notice to the tribe is required both as to the proceedings and the right to intervene. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1265.) Regarding notice, the ICWA provides that 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 . . . Indian childs tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. . . . No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the . . . tribe or the Secretary [of the Interior] . . . . (25 U.S.C. 1912(a).) If the identity or location of the tribe is unknown, the notice must be given to the BIA, as agent for the Secretary of the Interior. (Ibid.; Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253.)
At the time of these proceedings, our rules provided that the ICWA notice mandates, which we strictly construe (In re Francisco W. (2006) 139 Cal.App.4th 695, 703), were triggered when there was reason to believe the minor may be an Indian child (former rule 1439(f)(5)). This rule was renumbered effective January 1, 2007, and amended effective February 23, 2007, to eliminate the seven numeric subdivisions detailing various aspects of the notice mandate. It now reads: If there is reason to know that an Indian child is involved, the social worker or probation officer must send Notice of Involuntary Child Custody Proceedings for an Indian Child . . . to the . . . Indian childs tribe, in accordance with . . . section 224.2. (Rule 5.664(f), first italics added.) Section 224.2, in turn, was newly added by Statutes 2006, chapter 838, section 31, effective January 1, 2007. It requires notice whenever it is known or there is reason to know that an Indian child is involved . . . . ( 224.2, subd. (b), italics added.)
The BIA has issued guidelines implementing the ICWA. (Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979) (Guidelines).) The Guidelines, which are persuasive but not binding on state courts (Dwayne P. v. Superior Court, supra, 103 Cal.App.4th at p. 255), instruct that a copy (or the original) of each statutory notice sent shall be filed with the court together with any return receipts or other proof of service. (44 Fed.Reg. 67588 (Nov. 26, 1979) [ B.5(d)].) Section 224.2 also requires that [p]roof of the notice, including copies of notices sent and all return receipts and responses received, shall be filed with the court in advance of the hearing, subject to an exception pertaining to the detention hearing. ( 224.2, subd. (c).)
2. Analysis
Appellants[7]launch several arguments concerning the deficiency of notice under the ICWA, urging reversal of the section 366.26 order and remand for a new hearing. The Department concedes that ICWA notice forms sent to the Yurok Tribe, the three Cherokee Tribes and the BIA were not filed with the juvenile court. Therefore, the Department urges a limited reversal and remand to the juvenile court to determine if the ICWA notices were sufficient. Further, if, upon remand, L. is found to be an Indian child under the ICWA, the Department proposes that a section 366.26 hearing under the ICWA requirements should be conducted. If not, the order terminating parental rights should be reinstated.
a. Notice to Yurok Tribe
Appellants first contend this remedy is insufficient because only one out of six Yurok tribes received any kind of notice and the Yurok Tribe that did receive a notice was never told that L. might have Cherokee Indian heritage.
Regarding the six Yurok tribes, appellants point to a list of tribes published on a Web site maintained by the California Department of Social Services. This list identifies five rancherias with Yurok, and mixed Yurok/other tribal, affiliations, in addition to the Yurok tribe with a Klamath, California address. (
Here, mother presented one tribe, the Yurok Tribe, for consideration. As indicated above, Colleen Thornton, an Indian child welfare advocate, was present at the first detention hearing for the Yurok Tribe. She followed up with a letter on letterhead titled Yurok Tribe and listing a Klamath, California address and post office box. The letter (1) acknowledged that the Yurok Tribe received a copy of the Departments Notice concerning the dependency of [L.C.] (Involuntary Child Welfare Proceedings); (2) recited the appropriate court case number, JV040163, and L.s date of birth; (3) indicated the tribe had researched the biological parents as well as other relatives listed in the notice, and determined that the mother was an enrolled tribal mother, as was the maternal grandmother, but L., being under one-eighth blood quantum, was not eligible to become an enrolled member.
From this unchallenged evidence, it is clear that the Department gave notice to the correct tribe and the tribe had information to determine whether L. was eligible for membership. The tribe confirmed that mother and the maternal grandmother were enrolled members of that tribe. Mother has never stated, nor presented any evidence, that the correct tribe was not notified. The Department was under no duty, and no purpose would be served, by notifying the five rancherias.
Father did not claim any potential Native American heritage until late in the proceedings when he was again incarcerated. Appellants contend that once father raised the possibility of Cherokee heritage, the Department was again required to provide ICWA notice to the Yurok tribes because determination of blood quantum could change based on fathers possible Cherokee heritage. We disagree. Until it was determined through the ICWA notice process that L. did have Cherokee ancestry, there would be no reason to renotify the Yurok Tribe because there was no confirmed change concerning her ethnic background.
b. 60-day Rule
The record contains a proof of service by registered mail dated March 20, 2006, return receipt requested to the BIA, the United Keetoowah Band of Cherokee, the Cherokee Nation and the Eastern Band of Cherokee Indians (Eastern Band), each with the signed receipt. Responses from the United Keetoowah Band and the Cherokee Nation stated that L. was not eligible for enrollment and the tribes would not intervene. No response was received from the Eastern Band.
The contested 12-month review hearing rook place May 9, 2006. Appellants argue that the Department erred in commencing the 12-month review hearing less than 60 days from the date of notice to the Cherokee tribes, citing former rule 1439(f)(6), which was in effect at the time. That rule provided: If, after a reasonable time following the sending of notice under this rulebut in no event less than 60 daysno 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.[8]
Appellants phrase their argument this way: In the absence of both 60 days from the date of notice, the notices sent, and also a determinative response by either the tribes or the BIA to the notice sent on March 20, 2006, the juvenile court erred when it began the contested twelve-month review hearing. We are not quite sure what this means. Nonetheless we note first that two tribes did give a determinative response, notwithstanding that adequacy of notice must be reviewed on remand because key documents were not filed with the court. Second, as to the Eastern Band, the Department indicated in its section 366.26 report, which was prepared in October 2006well past the 60-day markthat it still had not received a response from the Eastern Band. If, on remand, notice to these three tribes is deemed sufficient, the court shall make findings in conformity with section 224.3, subdivision (e)(3). Moreover, we do not agree that the 60-day provision, whether stated as a rule or statute, should be construed as requiring our dependency system to shut down for 60 days awaiting response from a tribe, thereby overriding the statutory time frames that have been carefully crafted to minimize delay, move dependency cases forward expeditiously, and achieve finality of decision. Clearly, the juvenile court must defer making a finding that the ICWA does not apply until the earlier of a determinative response from a tribe that the minor is not an Indian child, or 60 days after receipt of notice. But the 60-day provision does not dictate the timing of juvenile court proceedings in a given matter.
In any event, the time to assert error in connection with the 12-month review hearing has passed. ICWA notice error only invalidates the order attacked in the current appeal, and does not reach back to invalidate prior orders in which ICWA notice error could have been asserted on appeal, but was not. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 340-341.) We are mindful that the ICWA includes an enforcement provision which establishes an invalidation proceeding, as follows: Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian . . . and the Indian childs tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title. (25 U.S.C. 1914.) Nonetheless, as further explained in Jonathon S., an appellate court is not a court of competent jurisdiction within the meaning of this provision, nor does it give us any jurisdiction to invalidate a juvenile court order based on an ICWA notice violation that we would not otherwise have. Any petition under the enforcement provision to invalidate an order in an open dependency must be filed in the juvenile court; only after the juvenile court renders an appealable ruling on the petition can we review the issues on appeal. (In re Jonathon S., supra, 129 Cal.App.4th at p. 342.)
c. Other ICWA Concerns
Additionally, appellants suggest that the court impliedly found that the ICWA applied at the 12-month contested review, and thus at that juncture the substantive mandates of the ICWA were set in motion. They cite the finding that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of a possible Indian family, to which the [ICWA] may or may not apply, and . . . these efforts were unsuccessful. This statement is couched in the language of possibility, not certainty. A word such as possible and the phrase may or may not apply disqualify the statement as an implied finding of fact concerning ICWA applicability. As a corollary, appellants maintain that until the juvenile court determines that the ICWA does not apply, it must apply ICWA evidentiary and substantive requirements. Again, we only review the current order, the order terminating parental rights. As explained below, we reverse that order for the limited purpose of determining compliance with the ICWA notice requirements. If the courts review on remand leads to a new section 366.26 hearing because additional notice is required and it is thereafter determined that L. is an Indian child, all subsequent proceedings will be in compliance with the ICWA.
Appellants also complain that the minors name is misspelled throughout the record and thus it cannot be known if L.s name were spelled correctly on the notice form. However, the responses in the record from the various tribes correctly spell [L.], and thus we will not infer that the name was misspelled on the notices and that the child may have been misidentified.
They also charge that although the Department used the addresses identified in the Federal Register for the Cherokee tribes, the receipt form filled out by the Department omitted the chief or other name designated in the register, and the postal receipts were not signed by the person so designated. Former rule 5.664(f)(2) and section 224.2, subdivision (a)(2) specify that the notice must be sent to the tribal chairperson unless someone else is designated as the agent for service. This requirement serves the purpose of ensuring that notice is received by someone with training and authorization to make ICWA determinations. (In re J.T., supra, 154 Cal.App.4th at p. 994.) We do not know what name, if any, was used on the envelopes or the actual letters. The two responses that were received came from the child welfare office or similar department of the tribe, thus demonstrating the appropriate connection to the ICWA inquiry. These responses rendered any error harmless. (Ibid.) We cannot at this juncture determine whether the error was harmless as to the Eastern Band.
Finally, appellants contend that the juvenile court lost jurisdiction because the Department did not provide notice. (See In re Desiree F. (2000) 83 Cal.App.4th 460, 474 [state courts have no jurisdiction to proceed with dependency proceedings involving a possible Indian child until a period of at least 10 days after the receipt of . . . notice]; In re Jonathan D. (2001) 92 Cal.App.4th 105, 110 [quoting Desiree F.]; In re Samuel P., supra, 99 Cal.App.4th at p. 1267 [citing both cases].)
First, the Department did provide notice, but did not provide the court with a complete record of its efforts and thus verification of the adequacy of notice is still a live issue. Second, we think the better position is articulated in In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1409-1410: There is a wide difference between a want of jurisdiction, in which case the court has no power to adjudicate at all, and a mistake in the exercise of undoubted jurisdiction, in which case the action of the trial court is not void, although it may be subject to direct attack on appeal. [Citation.] The court in Antoinette S. went on to explain that the juvenile court undoubtedly had subject matter jurisdiction, reviewing the pertinent statutory and constitutional authority, and the no jurisdiction statements in the above trio of cases appeared to have been simply a shorthand way of saying the ICWA violations under consideration in those cases constituted serious legal error. Indeed, the statements regarding no jurisdiction are only dicta. In each case, the reviewing court reversed or remanded because the lack of notice was prejudicial errorany additional language regarding jurisdiction was mere surplussage. (Id. at p. 1410; see also In re Brooke C. (2005) 127 Cal.App.4th 377, 384-385.) If an ICWA violation were held to trigger withdrawal of jurisdiction, the juvenile court would be deprived of all authority over the dependent child, requiring immediate return of the minor to the parent whose fitness was under review. (In re Antoinette S., supra, at pp. 1410-1411.)
3. Remedy
The proper remedy for noncompliance with ICWA notice provisions is a limited reversal of the order terminating parental rights and remand with directions for the purpose of ensuring compliance with the ICWA. (In reFrancisco W., supra, 139 Cal.App.4th at pp. 704-711; In re J.T., supra, 154 Cal.App.4th at p. 994.) Specifically, we direct (1) the Department to file all required documentation with the juvenile court for the courts inspection; and (2) the court to determine the adequacy of the notices sent to the tribes and the BIA, including, with respect to the Eastern Band, whether notice was sent to the appropriate person. If, after inspection and analysis, the juvenile court concludes that the previous mailings to the Yurok and Cherokee tribes substantially complied with the ICWA notice mandates such that no additional notice need be given, it shall make the finding that L. is not an Indian child and shall reinstate the order terminating parental rights. (See 224.3, subd. (e)(3); rule 5.664(g)(1), (4); In re Jonathon S., supra, 129 Cal.App.4th at p. 343.) If the court concludes that additional notice must be given to cure identified, nonharmless deficiencies, it shall direct the Department to give notice in compliance with the ICWA and related federal and state law. Upon finding substantial compliance with any necessary second round of notice, that court shall make a finding as to whether L. is an Indian child. (See rule 5.664(g)(5); In re Jonathon S., supra, 129 Cal.App.4th at p. 343.) The court shall find that L. is not an Indian child if it receives a determinative response to that effect within 60 days after such notice, or no response is received. ( 224.3, subd. (e)(3); rule 5.664(1), (4).) In either event it shall reinstate the original order terminating parental rights. On the other hand if the juvenile court finds that L. is an Indian child, it shall set a new section 366.26 hearing and conduct all further proceedings in conformity with the ICWA.
B. Adoptability Issues
1. Adoptability Finding
Appellants urge that the adoptability finding was not supported by substantial evidence. We disagree.
To terminate parental rights and order a child placed for adoption, the juvenile court must determine by a clear and convincing standard, that it is likely the child will be adopted . . . . ( 366.26, subd. (c)(1).) 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. [Citations.]. . . 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 adoptive parent or by some other family. [Citation.] (In re Asia L. (2003) 107 Cal.App.4th 498, 510.) The presence or absence of a prospective adoptive parent is a factor in the adoptability equation, but is not in itself determinative. (In re David H. (1995) 33 Cal.App.4th 368, 378.)
As referenced above, the adoptions caseworker conducted a thorough assessment, interviewing numerous people, including family members, former foster parents and current caretakers, and professionals involved in her cases and reviewing medical, psychological, educational and other records. The caseworker met with L. approximately 10 times over 18 months.
Without question there have been behavioral and developmental concerns about L. However, she is in good health and the adoptions caseworker reported that L. is no longer a client of Redwood Coast Regional Center. Additionally, she has made substantial progress in educational and physical skills, while still having some delays in language development, for which she continues to receive therapy and special education services. The caseworker also observed L. in preschool where she appeared happy, comfortable and social. The behaviors causing removal from two former foster parents were no longer at issue. Since moving to her current homewhere she had been for over 16 monthsL. progressed in all areas of growth and development. An affectionate bond had developed between L. and her prospective adoptive parents, and the couple appeared to demonstrate good parenting practices and the ability to meet L.s needs.
Here, the willingness of prospective adoptive parents to adopt L. is a factor pointing to adoptability. So, too, are her young age, good health and the reality of significant progress in numerous areas of functioning since she has been in a loving, competent home. The trial courts finding of adoptability was supported by substantial evidence.
2. Adequacy of Adoption Assessment
Whenever a section 366.26 hearing is set, section 366.21, subdivision (i) requires that the applicable agencies prepare an assessment that includes, among other items, a review of the amount and nature of contact between the child and his/her parents; an evaluation of the childs developmental, medical, scholastic, mental and emotional status; a preliminary assessment of eligibility of any identified prospective adoptive parent or guardian; the relationship of the child to any such identified person; and analysis of the likelihood of adoption. ( 366.21, subd. (i)(2)-(5), (7).) Father complains that the adoption assessment failed to include an accurate or adequate review of the amount and nature of contact between him and L., and did not assess her adoptability. The assessment was adequate.
The assessment, dated October 2006, indicated that L.s last visit with father was in November 2005. At that time he had been reincarcerated. The trial court terminated visitation the following month. The Departments permanency planning report reiterated that L. had not seen her father since his incarceration, and further stated that the juvenile court suspended visits because they were detrimental to the child. Where, as here, no visits have occurred for nearly a year, visitation had been suspended by the court on a finding of detriment and no intervening facts or circumstances in favor of visitation had occurred in the meantime, we conclude that the reporting was adequate.
Further, just as we found above that there was sufficient evidence of adoptability, that same evidence supports a conclusion that the likelihood of adoptability analysis was adequate. While the actual adoptability analysis did concentrate on the prospective adoptive family, an important factor in the adoptability analysis, the report as a whole, including assessment of L.s health and progress in all areas of growth and development numerous areas, as well as her positive adjustment to preschool, supports this conclusion. (See In re Crystal J. (1993) 12 Cal.App.4th 407, 413.)
C. Beneficial Relationship Exception
Section 366.26, subdivision (c)(1) incorporates an escape valve to prevent termination of parental rights where the court finds a compelling reason for determining that termination would be detrimental to the child due to the circumstance that a parent has maintained regular visitation and contact with the child and the child would benefit from continuing the relationship. (Id., subd. (c)(1)(A).) This provision has been interpreted as signifying that 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 other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parents rights are not terminated. [] . . . The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent. (In reAutumn H. (1994) 27 Cal.App.4th 567, 575.)
Father claims that the trial court erred in impliedly concluding that this exception did not apply. Not so. First, there is zero evidence that a bond developed between father and L., let alone a bond with a significant, positive, emotional flavor to it. (In re Autumn H., supra, 27 Cal.App.4th at p. 575.) Father says there is a bond, but saying so does not make it so. Father says: [L.] was nineteen months old when she was removed from her parents care. She had spent her entire life with her father, and no negative interactions were noted. L. was born in January 2003, and was barely two weeks old when father was incarcerated with a four-year sentence for drug-related offenses. He was still incarcerated when she was removed from her mothers care. There is no truth to the statement that until the removal, L. had spent her entire life with her father.
Second, father asserts that the juvenile courts termination of visitation virtually assured the erosion of any meaningful relationship with his daughter. Does father forget that the trial court terminated visitation upon finding it was detrimental to L., and that this court held: Certainly there was substantial evidence to support the juvenile courts order suspending visitation, because there was substantial evidence that continued visitation would be detrimental to [L.]. (Dan C. v. Superior Court (Oct. 16, 2006, A114792 [nonpub. opn.].)
The dearth of a parent-child bond, the deficits of fathers attempts at parenting, and his negative impact on L.s development, are described in detail above. The beneficial exception has no application. With this separate contention of error on appeal, appointed counsel has verged on crossing the boundary between fervent advocacy and making a frivolous argument totally and completely lacking in merit.
D. Denial of Mothers Section 388 Petition
Section 388 provides in part that a parent may, upon grounds of change of circumstance or new evidence, petition the court in the same action in which the child was found to be a dependent child of the juvenile court . . . for a hearing to change, modify. or set aside any order of court previously made . . . . (Id., subd. (a).) The court shall order a hearing on the petition where it appears that the best interests of the child may be promoted by the proposed change of order . . . . (Id., subd. (c).) Our Rules of Court require that a section 388 petition be liberally construed in favor of its sufficiency. (Rule 5.570(a).) However, if the petition fails to state a change of circumstance or new evidence that may require a change of order . . . , or that the requested modification would promote the best interest of the child, the court may deny the application ex parte. (Rule 5.570(d).) Thus, to obtain a full hearing on a section 388 petition, the parent must make a prima facie showing that changed circumstances or new evidence exist and the proposed change would be in the minors best interests. (In re Marilyn H. (1993) 5 Cal.4th 295, 309-310; In reZachary G. (1999) 77 Cal.App.4th 799, 806.) Nonetheless, if the liberally construed allegations in the petition do not satisfy the prima facie requirement, the juvenile court need not order a hearing on the petition. (In re Zachary G., supra, at p. 806.) Further, although allegations in the petition are to be liberally construed, conclusory claims will not justify a hearing. (In re Ramone R. (2005) 132 Cal.App.4th 1339, 1348.)
The juvenile court denied mothers section 388 petition without a hearing, noting, among other reasons, that it failed to state new evidence or a change of circumstances and failed to show that the requested modification was in L.s best interest. Mother has separately appealed the denial of her section 388 petition, challenging the action as a denial of due process that must be reviewed under a de novo standard. There was no denial of due process, but mother correctly asserts a de novo standard.
Numerous courts have propounded that the standard of review for the summary denial of a section 388 petition is the abuse of discretion standard. (See, e.g., In re Ramone R., supra, 132 Cal.App.4th at p. 1348; In re Aaron R. (2005) 130 Cal.App.4th 697, 705; In re Brittany K. (2005) 127 Cal.App.4th 1497, 1505; In re Angel B. (2002) 97 Cal.App.4th 454, 460; In re Anthony W. (2001) 87 Cal.App.4th 246, 250.) In reStephanie M. (1994) 7 Cal.4th 295, 316-319 has been cited as relevant Supreme Court authority for this standard (see, e.g., In re Brittany K., supra, 127 Cal.App.4th at p. 1505), but Stephanie M. did not involve a prima facie evaluation; rather, the juvenile court denied the petition after a contested hearing. The prima facie showing that is the gatekeeper to a section 388 hearing refers to those alleged facts which would sustain a favorable determination if the supporting evidence were credited. (In reBrittany K., supra, 127 Cal.App.4th at p. 1505.) Whether that showing is made depends on the facts alleged in the petition as well as the established facts in the courts own file that bear on the situation targeted for change. These are facts that are without dispute as well as facts required to sustain court orders and decisions that have not been challenged or have been upheld on appellate review. In other words, the trial courts job in making the first cut on a section 388 petition involves the quintessential legal task of applying law to undisputed facts. It has no discretion to deny a hearing when confronted with a prima facie showing that the best interests of the child may be promoted by the proposed change of order . . . . ( 388, subd. (c).)
Here the commissioner who denied the petition had presided over most of the hearings in this case and was thoroughly familiar with the relevant facts. This includes the reality that L. had been with her prospective adoptive parents for 16 months and had adjusted well. The couple had no children, was interested in adopting L. and able to provide her with the patience, vigilance and structure that she needed. The previous psychological evaluation documented L.s significant attachment problems, though at the time there was some evidence she was developing an attachment to her foster mother. According to the evaluator, the most important intervention was to provide a stable, secure, consistent, nurturing relationship with a primary caretaker, which is exactly what the prospective adoptive parents were doing. Further, the evaluator recommended that L. be placed with a family with no children or no young children to afford the family the time and flexibility to use the resources and services necessary to help L. There was no prior relationship between the third cousin and L. Additionally, the third cousin had a young child in her home. At this point in the proceedings, the juvenile court was charged with giving uppermost consideration to the minors need for stability, permanency and continuity. (In reStephanie M., supra, 7 Cal.4th at pp. 317-318, 323-324; In re Brittany K , supra, 127 Cal.App.4th at p. 1507.) A change in custody would disrupt L.s family life at a time when she was making progress on numerous fronts. Although the third cousin declared a willingness to raise L. and include her within the ceremonies and customs of the Yurok culture, there is no evidence that the change in custody at this point in the fragile girls life might promote her best interests. Accordingly, the juvenile court did not err in summarily denying the petition.
III. DISPOSITION
We reverse the judgment terminating parental rights with a limited remand to the juvenile court with directions and guidance as set forth in part II.A.3., above. Following remand, should the order terminating parental rights be reinstated, the affirmance of decisions and findings challenged in part II.B. and C. will survive the remand.
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Reardon, Acting P.J.
We concur:
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Sepulveda, J.
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Rivera, J.
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[1]Unless otherwise indicated, all statutory references are to the Welfare and Institutions Code.
[2]L. was evaluated by a psychologist in April 2005. She exhibited a high degree of acting-out and emotional problems, including sexual behaviors, which were likely to have resulted from neglect, abuse, exposure to adult sexual behavior and attachment deficits. The evaluator stated that the most important intervention to foster healthy attachments would be to provide a stable, secure, consistent and nurturing relationship with a primary caretaker.
[3]Environmental Alternatives is the agency that monitors visits.
[4]An Indian tribe is any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary [of the Interior] because of their status as Indians . . . . (25 U.S.C. 1903(8); rule 5.664(a)(6).)
[5]An Indian child 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).)
[6]All references to rules are to the California Rules of Court.
[7]Since both parents raise ICWA issues, for the sake of convenience we do not distinguish between the arguments of mother and father.
[8]Section 224.3, subdivision (e)(3) now states: If proper and adequate notice has been provided pursuant to Section 224.2, and neither a tribe nor the [BIA] has provided a determinative response within 60 days after receiving that notice, the court may determine that the [ICWA] does not apply to the proceedings . . . .
