In re C.B.

Filed 12/10/08 In re C.B. CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

I.                   Introduction

N. B. (father) appeals from an order of the juvenile court terminating his parental rights to his son, C. B., under Welfare and Institutions Code section 366.26.[1] Father contends that the evidence is insufficient to support the finding that C. B. is adoptable and that notice under the Indian Child Welfare Act (ICWA) (25 U.S.C. 1901 et seq.) was improper. We remand for compliance with ICWA.

II.                Facts

C. B. was two and a half years old when, on March 2, 2006, he was taken into protective custody in San Luis Obispo County. At the time, the juvenile court had jurisdiction over C. B.s two half siblings, both of whom had been made dependent children of the court due to the inability of their mother to protect them. ( 300, subd. (b).) Father was in custody in the San Luis Obispo County jail. The superior court sustained the allegations of a petition filed under section 300 and made C. B. a dependent child of the court. C. B. was placed in a foster home and the court ordered family reunification services for mother.

Within months, mother moved to San Joaquin County, having taken no steps to reunify with C. B. She later moved to Oklahoma. The court terminated services to mother and ordered reunification services for father. When father was released from jail in August 2006, he moved to Santa Cruz County. C. B. was placed with father in February 2007 and the case was transferred to Santa Cruz County.

C. B. was detained a second time in July 2007 and was again placed in foster care. Fathers services were terminated October 16, 2007. By the time of the selection and implementation hearing in April 2008, father had returned to custody in San Luis Obispo County.

When C. B. was in foster care in San Luis Obispo County, he had received Early Start Services from the Tri-Counties Regional Center due to cognitive, communicative, and social delays. He was reported to be eager to learn, sweet, has a love of books, and has a good attention span. According to his 2006 education plan, C. B. had moderate to severe expressive language delay that affect[ed] his ability to communicate.

A year later, C. B.s Santa Cruz foster mother reported that C. B. was growing and developing and learning by leaps and bounds! He needed continuous supervision because he was strong, active, curious, and able to get himself into dangerous situations in an extremely short amount of time. He had some hearing loss and speech delay due to multiple ear infections and his physician had discussed the need for surgery to insert tubes in his ears and remove his tonsils. The doctor recommended that C. B. live in a smoke-free environment as the ear problems were probably due to second-hand smoke. C. B. was having trouble with potty training. He used curse words, especially after he visited his father. He was in need of time with other children, as he was the only child in the foster parents home and had not yet begun preschool. He still longed for his fathers attention but he was bonding closer and closer with the foster parents. C. B.s CASA (court appointed special advocate) reported her belief that C. B. was thriving in his current environment.

In a report dated March 4, 2008, C. B.s CASA reported, [C. B.] is all boy. He is quite active and loves our time at the park as much as he loves animals . . . . [C. B.] also loves music . . . . [He] is curious and learns by doing--nothing escapes his notice or his hands. But he is respectful and will obey limits when they are clear. C. B. had surgery in January 2008 to correct his mouth breathing and hearing problems so that where [C. B.] used to say What? repeatedly, he now asks Why?--much more typical of a 4 year old! [C. B.] also attends speech therapy four times a week, and his language skills are markedly improved. His motor skills were good, his attention span was improving, and he had a newfound pleasure in making jokes. The CASA wrote, He has lost his worried look and is impish--he teases (with an expectant smile on his face) and plays with words and sounds. He continues to thrive in his current environment and his foster parents wanted to adopt him.

In its March 4, 2008 report for the selection and implementation hearing ( 366.26) the Agency informed the court that C. B. had been living with the same foster family since July and that the foster parents were the prospective adoptive parents. The report stated: The adoptive parents state they want to adopt [C. B.]. They are committed to providing him with a stable and loving home. [C. B.] is already thought of as a member of the family and they would like to make this a permanent and legal relationship. The report went on: The prospective adoptive parents understand that by adopting [C. B.] they take on all legal and financial rights and responsibilities of a parent. They are willing and able to accept these.

On April 2, 2008, the juvenile court found, by clear and convincing evidence, that C. B. was likely to be adopted. The court ordered that the parental rights of both parents be terminated, selected adoption as the childs permanent plan, and referred the child for adoptive placement. Father has appealed from that order.

III.             Discussion

A.                 Evidence of Adoptability

In order to select adoption as the permanent placement plan the juvenile court must find by clear and convincing evidence that it is likely that the child will be adopted. In making that determination the court focuses on whether the childs age, physical condition and emotional state will create difficulty in locating a family willing to adopt her. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) (In re J. I. (2003) 108 Cal.App.4th 903, 911.) 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. (In re Sarah M., supra, at pp. 1649-1650.)

In reviewing a juvenile courts conclusion that a child is likely to be adopted, we apply the substantial evidence standard of review. (In re Alvin R. (2003) 108 Cal.App.4th 962, 971.) We do not reweigh the evidence. (In re Stephanie M. (1994) 7 Cal.4th 295, 318-319.) [W]e presume in favor of the order, considering the evidence in the light most favorable to the prevailing party, giving the prevailing party the benefit of every reasonable inference and resolving all conflicts in support of the order. (In re Autumn H. (1994) 27 Cal.App.4th 567, 576.) With this test, however, we bear in mind the heightened burden of proof in the juvenile court. (In re Kristin H. (1996) 46 Cal.App.4th 1635, 1654.) The standard of review is thus sometimes stated as follows: We review [the adoptability finding in] order to determine whether the record contains substantial evidence from which a reasonable trier of fact could find a factual basis for termination by clear and convincing evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.)

Father lists the following as facts relevant to the adoptability finding: C. B. was over three years of age; he had a history of ear infections and was at risk of hearing loss; he should be placed in a non-smoking home; he had a speech delay; he had qualified for services from a regional center, which assists developmentally disabled people; he had been described as a child who needs constant supervision; he had been closely bonded to his father; his foster parents had offered to adopt him; and there was no evidence of other families willing to adopt C. B. Father concludes this list by stating that these facts do not support a finding that the child is generally adoptable. But father omits much of the evidence favoring the adoptability finding.

Although C. B. was more than three years old, he was still a very young child, just approaching school age. His development was delayed somewhat but both the foster parents and the CASA reported global improvements. His health history was remarkable for hearing and speech problems but the CASA report indicated that he had surgery to correct the problems (a tonsillectomy and tubes in his ears) and his hearing and speech were improving. He was otherwise healthy, active, and impish. Each report showed more improvement. And his foster family was willing to adopt him, evidence that he is likely to be adopted by them or by some other family. This is ample evidence to support the courts finding.

B.                 Sufficiency of ICWA Notice

The record indicates that mother claimed to have Cherokee Indian heritage and that notices pursuant to ICWA were sent to the federally recognized Cherokee tribes in connection with the half-siblings case in San Luis Obispo County. Father argues that although ICWA notice requirements may have been met in connection with C. B.s half siblings, the matter must be reversed because no notice was sent pertaining to C. B.

Under the ICWA, where a state court knows or has reason to know that an Indian child is involved, statutorily prescribed notice must be given to any tribe with which the child has, or is eligible to have, an affiliation. (25 U.S.C. 1912(a).) The court and the social services agency have an affirmative duty to inquire whether a child for whom a petition under section 300 is to be, or has been, filed is or may be an Indian child. (In re Samuel P. (2002) 99 Cal.App.4th 1259, 1264.) Because the determination of a childs Indian status is a matter for the tribe, the juvenile court needs only a suggestion of Indian ancestry to trigger the notice requirement. (In re Nikki R. (2003) 106 Cal.App.4th 844, 848.) An agency must inquire regarding the particular child before the court and cannot always rely upon past inquiries relating to that childs siblings. (In re Desiree F. (2000) 83 Cal.App.4th 460, 470.) The agency must file with the court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minors status. (In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740, fn. 4; Cal. Rules of Court, rule 5.482(b).)[2] The failure to comply with the notice requirements of the ICWA generally constitutes prejudicial error unless the tribe has participated in or indicated no interest in the proceedings. (In re Samuel P., supra, 99 p. 1265.) We review a challenge to the sufficiency of the ICWA notice under the substantial evidence standard of review. (In re Merrick V. (2004) 122 Cal.App.4th 235, 247.)

Father claims no Indian heritage but the record contains a note stating that at a hearing on January 4, 2006 (before C.B. was detained), mother and father [of C. B.s half siblings], claimed Cherokee Indian heritage. The report states that notices were sent to three Cherokee tribes, that two tribes responded that the minors (C. B.s half siblings) were not eligible for enrollment, and that the third tribe requested more information. The jurisdiction and disposition report of March 28, 2006, concludes, On February 22, 2006 an offer of proof was made that that [sic] requirements of ICWA have been satisfied and that none of the children are defined as Indian children under that act. Neither the notices nor the responses are contained in the record. Furthermore, as far as we can tell, no notices were sent pertaining to C. B. at all.

The Agency argues that where it is clear that reversal based solely upon ICWA noticing error will merely delay the childs adoption, the court may affirm on the ground the error was harmless. We do not find the error harmless in this case. Although it appears that notices were sent and responses received in connection with the half-siblings case, we cannot review the sufficiency of those notices because they are not in the record. Therefore, even if notice that was given pertaining to the half-siblings could suffice for determining whether ICWA applies in C. B.s case, it is impossible for this court to assess the sufficiency of that notice. Accordingly, we must reverse.

IV.              Disposition

The order terminating parental rights is conditionally reversed, and the matter is remanded to the juvenile court with directions to order the Santa Cruz County Human Resources Agency to proceed as required by ICWA (25 U.S.C. 1901 et seq.), Welfare and Institutions Code sections 224 through 224.6, and the California Rules of Court, rule 5.480 et seq. If, after the Agency completes the prescribed procedures, the juvenile court concludes that ICWA does not apply, then the order terminating parental rights shall be immediately reinstated. If any tribe determines that C. B. is an Indian child within the

meaning of ICWA, the juvenile court shall conduct further proceedings in accordance with ICWA, the Welfare and Institutions Code, and the California Rules of Court.

Premo, J.

WE CONCUR:

Rushing, P.J.

Elia, J.

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[1] Further section references are to the Welfare and Institutions Code.

[2] The rule in effect in 2006 was California Rules of Court, former rule 1439. That rule was renumber rule 5.664, effective January 1, 2007, repealed and replaced with current rules 5.480 through 5.487, effective January 1, 2008.