Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. No. JV060025
Marchiano, P.J.
S.T. (Mother) appeals an order entered October 18, 2006, by the Humboldt County Superior Court, Juvenile Division, which terminated her parental rights to her daughter, E. T. (born July 2001). She contends the order must be reversed because she did not receive proper notice of the hearing that resulted in that order, as well as earlier proceedings that led to a dispositional order entered on April 4, 2006, which denied reunification services for her and set a hearing under section 366.26 of the Welfare and Institutions Code to select a permanent plan for E. T. Mother also argues that she received ineffective assistance from her appointed trial counsel, and that the evidence was insufficient to support the court’s adoptability finding. Finally, Mother urges that reversal is required due to noncompliance with the notice provisions of the Indian Child Welfare Act (ICWA).
Further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
25 U.S. § 1901 et seq.
As discussed below, we reject Mother’s claims, except that pertaining to noncompliance with the notice provisions of ICWA. As to that claim, we direct a limited reversal. On remand the juvenile court shall order the Humboldt County Department of Health and Human Services (Department) to provide notice as required by ICWA. If, after such notice, no tribe intervenes to claim E. T. as an Indian child, the order shall be reinstated.
Background
Soon after giving birth to E. T., Mother left the infant with her own mother, Bernice R. Because of an admitted history of substance abuse, Mother never parented E. T. during the four years before the events that led to this proceeding. E. T.’s alleged father has never had contact with E. T. and his whereabouts have been unknown throughout these proceedings. E. T. lived in Ferndale, Humboldt county, with Bernice and Bernice’s long-time cohabitant, Thomas T. Mother did not reside in Humboldt county during the time Bernice cared for E. T.
Bernice and Thomas had a long history of alcohol abuse and domestic violence. On December 9, 2005, the two began to argue while both were intoxicated. In the early hours of December 10, Thomas assaulted Bernice. Bernice’s adult son, James T., arrived for a visit later in the morning and was angered to see Bernice’s condition. He assaulted Thomas and then took Bernice to the hospital. Four-year-old E. T. accompanied them.
Later in the morning of December 10, 2005, police arrived at the hospital’s emergency room to investigate a possible domestic assault. An officer took E. T. into emergency protective custody and placed her in the care of Thomas’s adult daughter and her husband (the A. family). The matter was referred to the Department, and it initiated an active case regarding E. T.’s safety and welfare. Later the police arrested Thomas for domestic assault. After his arrest and removal from Bernice’s home, E. T. returned to Bernice’s care.
On December 19, 2005, Mother came to Humboldt county from Oregon to care for Bernice and E. T. while Bernice recuperated from her injuries. During the weekend of New Year’s day, 2006, Mother became intoxicated and assaulted Bernice. Police arrested Mother and held her in custody on outstanding warrants. The Department placed E. T. temporarily with the A. family. After her release from jail, Mother resumed care of E. T. and began living at the Loleta Community Church (Church) while she awaited entry into a local facility for substance abuse treatment. She told the Department that she desired to assume, for the first time, permanent care and physical custody of her four-year-old daughter. Bernice acknowledged at that time that she was no longer capable of caring for E. T. The Department had concerns about Mother’s ability to care for E. T., given her lack of parenting experience and her history of substance abuse. It allowed Mother to retain custody of E. T. under an informal family maintenance plan.
On February 6, 2006, the Department filed a petition seeking to establish dependency jurisdiction for the purpose of implementing a formal family maintenance plan. Allegations pursuant to section 300, subdivision (b), stated that Mother’s “ability to parent [was] unknown, as well as her ability to remain drug-free and refrain from the use of alcohol.” The proposed case plan included services for parenting education and outpatient substance abuse counseling. On February 15, Mother signed a formal acknowledgment agreeing to participate in the plan. Meanwhile, the initial hearing on the petition was scheduled for February 27.
The record indicates the juvenile court clerk gave notices to both Mother and Bernice regarding this initial hearing date. These notices were served by mail addressed to Mother at her Church address and to Bernice at a post office box she maintained in Ferndale.
On February 16, 2006, Mother took E. T. to the A. family and told them she could no longer care for her daughter. She left E. T. in their care, saying she planned to return “in June or July.” Her whereabouts were unknown after that date. The A. family referred the matter to the Department on February 18, and the Department took protective custody of E. T. on that date.
The Department filed a second petition on February 22, 2006, which alleged Mother had abandoned E. T. during the pendency of a proposed family maintenance program. It accordingly sought to establish dependency jurisdiction under section 300, subdivision (g). The previous day, February 21, the Department mailed notice of the detention hearing on this petition to Mother, addressed in care of the Church address, mother’s last known address. In a report signed February 23, the case worker initially assigned to the case stated Mother had telephoned the A. family once after leaving E. T. with them. During this call, the A. family informed Mother she should contact the Department “for information, help, and support.”
Mother did not appear at the detention hearing held on February 23, 2006, at which time the court formally detained E. T. The Department formalized E. T.’s placement with the A. family, designating them as relative foster caregivers. The Department mailed notice to Mother of a pretrial hearing to be held March 2, and a jurisdictional hearing on March 13, again addressed in care of the Church. On March 13, the court sustained the jurisdictional allegations under section 300, subdivision (g). Again Mother did not appear.
At this time the court also granted the Department’s request to withdraw the earlier petition.
The next day, March 14, 2006, Mother made her first and only contact with the Department, speaking briefly by telephone with the case worker initially assigned to the case. He informed her that the next court hearing—the dispositional hearing—was scheduled for March 27. It appears the Department assigned the case to a new social worker the following day, who on that date sent a letter to the Church address in an attempt to contact Mother. In a report prepared for the dispositional hearing, signed March 24, the new case worker stated she had conducted a due diligence search—one she apparently initiated on March 17. In the course of this search she contacted the Church to confirm Mother no longer lived there. The case worker also contacted the Ferndale postmaster and Bernice. The postmaster responded on March 20, 2006, stating that mail for Mother was being delivered to Bernice’s post office box. Bernice, for her part, told the case worker she did not know Mother’s whereabouts.
The case worker recommended that the juvenile court deny reunification services pursuant to section 361.5, subdivision (b)(1)—that is, because the whereabouts of both parents were unknown and neither were providing for E. T.’s care and support. She also recommended that the court proceed immediately to set a section 366.26 hearing for the purpose of selecting a permanent plan for E. T. On March 24, 2006, the Department served Mother by mail with a copy of the dispositional report, addressed to Bernice’s post office box.
On March 27, 2006, the court continued the scheduled dispositional hearing. At the conclusion of the continued hearing on April 4, the court adopted the Department’s recommended findings and orders, denied reunification services for both parents, and set the matter for a hearing under section 366.26. On both dates, Bernice appeared in court. Mother did not.
On April 5, 2006, the juvenile court clerk mailed notices directing Mother and Bernice to appear for a mandatory readiness conference on July 20, 2006, and to appear for the section 366.26 hearing on July 31. This notice was addressed to Mother at the Church address—which remained the clerk’s only address for her—and to Bernice at her post office box. On June 9, 2006, the Department sent Mother notice of both the readiness conference and the section 366.26 hearing, by certified mail addressed to Bernice’s post office box. A proof of service showed Mother signed a receipt for this letter on June 20.
Mother never contacted the Department after acknowledging receipt of this notice. Nor did she appear at the mandatory readiness conference held July 20, 2006, despite her actual notice of that hearing. She made her first court appearance in this proceeding on July 31, the date scheduled for the section 366.26 hearing. The court appointed counsel for Mother and continued the matter to August 16, to allow Mother and her counsel time to confer. Meanwhile, it ordered Mother to provide notification of her current mailing address. Mother provided a new address in Ferndale.
Mother appeared a second time on August 16, 2006. At that time, her counsel indicated an intent to file a petition under section 388 requesting that the juvenile court vacate the section 366.26 hearing and direct the Department to provide Mother with reunification services. The court scheduled a pretrial hearing for September 13, and continued the section 366.26 hearing to October 2, 2006, to allow Mother’s counsel time to prepare his petition. The court clerk also mailed to Mother a written notice directing her to appear on these dates—addressed to the Ferndale address she had newly provided to the court.
Mother’s counsel filed a motion on August 25, 2006, in which he sought to vacate the section 366.26 hearing and have the matter reset for disposition. The ground for the motion was that Mother had “not [been] noticed of these proceedings and was . . . not afforded the opportunity to reunify with [E. T.].” In a supporting declaration Mother’s counsel averred that she had told him that she first had actual notice of the proceedings on June 12, when she learned of the scheduled section 366.26 hearing through Bernice. Her counsel’s argument in support of the motion was that the Department’s notices to Mother of the initial proceedings—served by mail to the Church address—did not constitute reasonable notice under the circumstances.
On September 13, 2006, Mother appeared a third time. The court continued that hearing to September 27 to allow counsel for the Department and for E. T. to prepare and submit written opposition to Mother’s motion to vacate.
On September 27, 2006, Mother failed to appear, but at her counsel’s request the court scheduled an evidentiary hearing on her motion to vacate for October 2, immediately prior to the section 366.26 hearing scheduled for that date. Mother failed to appear a second time on October 2. The court continued both the hearing on the motion to vacate, and the section 366.26 hearing, to October 16. On October 16, Mother, for the third time since her return, failed to appear. The court continued both the hearing on Mother’s motion and the section 366.26 hearing to October 18.
Finally, on October 18, 2006, the court began its hearing on Mother’s motion to vacate. Counsel for Mother made an oral motion to continue, on the ground that Mother was once again not present and that her testimony was needed to support the motion. He reported that he had not been in contact with Mother since September 28, and that his attempts to contact her by telephone had not been successful because “the [telephone] number [he] had to reach her was the incorrect number.” The court denied the oral motion to continue, finding no good cause to do so.
Following testimony from the case worker and argument by counsel, the court denied Mother’s motion to vacate. Turning to the section 366.26 hearing, the court adopted the Department’s recommended findings and orders, including a finding by clear and convincing evidence that E. T. was likely to be adopted, and an order terminating Mother’s parental rights.
This appeal followed. (§ 395, Cal. Rules of Court, rule 8.400.)
The notice of appeal specified an order of October 11, 2006, terminating Mother’s rights. There was no such order. As Mother has requested, we construe the notice liberally to refer to the order of October 18, 2006, terminating Mother’s parental rights. (In re Madison W. (2006) 141 Cal.App.4th 1447, 1450.)
Discussion
A. Notice to Mother
Mother contends the order of October 18, 2006—the order terminating her parental rights—must be reversed because the Department failed to use due diligence to give her proper notice of earlier proceedings up to and including the dispositional hearing. She argues the Department knew she was no longer residing at the Church and that she was using Bernice’s post office box, yet it unreasonably used the Church address to mail its notices of the initial hearings, and failed to use Bernice’s post office box. She further urges that, if the Department believed her whereabouts were unknown, both the Department and the court clerk were required to give notice of the initial hearing to Bernice as the nearest adult relative residing in the county, yet they failed to do so. Although the Department did mail a copy of the dispositional report in care of Bernice’s post office box on March 24, Mother objects to its sufficiency as notice of the dispositional hearing. She asserts it did not include all the information required by section 291, subdivision (d). Moreover, she claims the dispositional report did not satisfy due process, because it failed sufficiently to apprise her of the nature of the hearing, nor advise her that evidence might be taken at the hearing and a ruling issued even if she did not appear. Finally, Mother contends the order of October 18, 2006, must be reversed because the Department failed to provide her with notice of the continued hearing dates of October 16, and October 18.
Technical defects in the statutory notice requirements do not require reversal so long as the requirements of constitutional due process are satisfied and there is no resulting prejudice. (See, e.g., In re Melinda J. (1991) 234 Cal.App.3d 1413, 1419.) Prior to the termination of parental rights, due process requires that the parent be given notice of each stage of the dependency proceeding, notice that is reasonably calculated under all the circumstances to apprise the parent of the pendency of the action and afford him or her an opportunity to appear and present objections. (In re DeJohn B. (2000) 84 Cal.App.4th 100, 106 (DeJohn B).) The manner of providing the notice to an absent parent must be that which one who desires to provide actual notice might reasonably adopt. (In re Arlyne A. (2000) 85 Cal.App.4th 591, 598.)
We have described above in some detail the manner in which the Department and the court attempted to keep Mother apprised of the proceeding initiated on February 22, 2006. The Department served Mother by mail, addressed to the Church, with notices of the initial hearings held February 23, March 2, and March 13. The Church address was that which Mother had provided to the Department when she first expressed her desire to care for E. T. There is no indication that the Church returned any of these earlier notices to the Department because they could not be forwarded or delivered. Contrary to Mother’s assertion, there is nothing in the record to indicate that the Department knew, when it sent these earlier notices, that it might better reach Mother through Bernice’s post office box rather than through the Church address Mother had provided. In fact, the Department might reasonably have assumed the contrary, given Mother’s assault on Bernice in early January.
It is true that—as the whereabouts of both parents were unknown—the Department had a duty to provide notice of the initial hearing on the petition to “any adult relative residing within the county.” (§ 290.1, subd. (a)(6), italics added.) However, if the Department failed to provide such notice to Bernice, such error appears harmless, as the A. family were also adult relatives living in the county and had actual notice of the proceedings. They made the referral on February 18, 2006, that resulted in the filing of the petition, and the case worker initially assigned to the case visited them on February 21, the day before he filed the petition, to see E. T. and “answer any questions.” The record indicates that Mother telephoned the A. family between the date she left E. T. with them, on February 16, and the date when the initial case worker signed the jurisdictional report, on February 23. The jurisdictional report relates the occurrence of that call and the fact that, during the call, the A. family advised Mother to contact the Department.
Moreover, it is evident Mother was aware, before she left, that the Department had initiated a proceeding by a petition filed February 6, 2006, and that this proceeding would require that she maintain contact with the Department and make appearances in the juvenile court. Presumably she received a copy of the first petition, and this petition gave prominent notice to her of her rights and obligations in a dependency proceeding. It also gave prominent notice that, to protect her rights, Mother was required to “appear in court and answer this petition.” On February 15, Mother signed the family maintenance plan that the Department had developed in connection with this petition. The plan called for the Department’s case worker to meet with Mother at least once a month.
In addition, the clerk of the juvenile court, on February 6, 2006, mailed notice of the initial hearing on the petition, addressed to both the Church address and Bernice’s post office box.
Given all the foregoing circumstances, we conclude the Department exercised due diligence and gave notices to Mother of the initial proceedings that were reasonably calculated to give her actual notice. Mother knew she needed to stay in contact with the Department, yet she failed to provide the Department with a new address, and indeed failed to make any contact with the Department at all during the time these notices were sent. (Cf. § 316.1, subd. (a).) It also appears Mother never provided a forwarding address to the Church. If Mother never received actual notice of the filing of the second petition, and never received actual notice of the detention and jurisdictional hearings on that petition, this was a result that can only be attributed to her act of deliberately absenting herself.
With respect to notice of the dispositional hearing, we reiterate the following. Mother made her first and only contact with the Department by means of a brief telephone call on March 14, 2006, the day after the jurisdictional hearing. It appears she did not provide a new address or reveal her whereabouts during that contact. The case worker who spoke with her notified her of the dispositional hearing scheduled for March 27. The Department evidently assigned the case to another social worker on March 15. The new case worker immediately attempted to contact Mother through the Church address and initiated a due diligence search for Mother. In the course of this search she contacted the Church, the Ferndale postmaster, and Bernice. In doing so, she confirmed for the first time that Bernice’s post office box was the better means of giving Mother notice of the proceedings, although Bernice herself did not know Mother’s whereabouts. On March 24, the case worker served a copy of the completed dispositional report on Mother, by mail addressed in care of Bernice’s post office box. Mother later received and signed for a subsequent notice addressed to this same post office box.
The first page of the dispositional report provided the scheduled date for the dispositional hearing, March 27, 2006, as well as the time and location of that hearing. That page also provided the case worker’s name and telephone number. Elsewhere, the report summarized the basis for the court’s jurisdiction. The report concluded with recommended findings and orders, including an order denying Mother any reunification services, an order setting a permanency planning hearing, an order advising the parents that permanency planning could result in the termination of parental rights, and an order advising them of the writ procedure for obtaining review of the recommended order.
These circumstances persuade us that the Department provided sufficient notice of the dispositional hearing to satisfy due process. The Department served Mother with a copy of the dispositional report in a manner reasonably calculated to give her actual notice—that is, by mail at an address determined after a due diligence search to be the most likely address to result in actual delivery to Mother, and an address that was effective in giving Mother notice of a subsequent proceeding. The copy of the dispositional report provided the time and place of the hearing scheduled for March 27, 2006. It also summarized the nature of the proceeding and set out the orders the Department would be requesting at the scheduled hearing. In our view, this information was sufficient to apprise Mother of the pendency and nature of the hearing and to afford her an opportunity to appear and present objections. (DeJohn B., supra, 84 Cal.App.4th at p. 106.)
With regard to notice of the continuance of the dispositional hearing to April 4, 2006, we note that failure to provide adequate notice of a continued hearing is a trial error subject to the harmless error analysis of Chapman v. California (1967) 386 U.S. 18 (Chapman). (See In re Angela C. (2002) 99 Cal.App.4th 389, 395 (Angela C.).) Here, Mother received notice sufficient to satisfy due process of all hearings up to and including the initially scheduled date of the dispositional hearing. She appeared at none of these hearings, having intentionally absented herself during the pendency of the prior petition. There is absolutely nothing in the record to suggest that Mother would have acted differently—by making an appearance—had she received notice of the continuance to April 4. We conclude any error regarding notice of this continued date was harmless beyond a reasonable doubt under the standard set out in Chapman, supra, 386 U.S. 18.
We reject Mother’s argument that the error in this instance was “structural” and hence reversible per se. ~(AOB, pp. 39-40.)~ She relies on the decision of DeJohn B., supra, 84 Cal.App.4th 100, for this proposition. In that case the agency removed the minors from the father’s custody. The noncustodial mother was absent throughout the proceeding and the agency made no attempt whatever to provide her with notice of the status review hearing that resulted in the termination of the father’s reunification services and the setting of a section 366.26 hearing. (See DeJohn B., supra, 84 Cal.App.4th at pp. 104, 107, 110.) The facts of that case are thus significantly distinguishable from those presented here. In this case Mother was initially aware of the pendency of a dependency proceeding on a prior petition, but nevertheless deliberately absented herself. The Department, for its part, did undertake reasonable efforts to give her notice of proceedings on the second petition.
Finally, we come to Mother’s claim of error based on the Department’s and the juvenile court’s failure to provide her with notice that the section 366.26 hearing was continued from October 2, 2006, to October 16, and again to October 18. Mother’s only appearances in these proceedings occurred on July 31—the initial date of the section 366.26 hearing—and the continued hearing dates of August 16, and September 13. Mother had notice of the continued hearing date on October 2 both from the juvenile court, which set the date in her presence on August 16, and from that court’s clerk—who sent her written notice by mail to the address Mother provided the court July 31. She did not appear on October 2, when the court continued the hearing to October 16, nor on October 16, when the court continued the hearing to October 18. Her counsel, however, was present on both of these dates. At the hearing on October 18, as we have noted, her counsel stated that his attempts to contact Mother after September 28 had not been successful because the only telephone number he had with which to contact her had proven to be incorrect.
The Department was required to give notice of the section 366.26 hearing pursuant to section 294, subdivision (a)(1). It did so. Mother received that notice on June 20, 2006. With regard to continued hearing dates, notice may be given by mail, by an order to appear given to a parent who is present in court when the continuance is scheduled, or by “any other means that the court determines is reasonably calculated, under any circumstance, to provide notice of the continued hearing.” (§ 294, subd. (d).) However, if a parent’s attorney of record is present when the court schedules a section 366.26 hearing, no further notice is required. (§ 294, subd. (j).) The one exception is when an absent parent requires initial notice under section 294, subdivision (f)(7)(A). That exception does not apply here, because the Department successfully gave Mother actual notice of the initial hearing date by certified mail sent to her last known mailing address. (See § 294, subd. (f)(2).) Mother thereafter provided the court and the Department with a residential address making her whereabouts known.
In our view, there was no error in providing notice of the continued hearing dates because Mother’s counsel was present at the time the court made the continuances to October 16, 2006, and October 18 to allow mother to appear. Counsel was unable to give Mother actual notice of the continuances because she failed to give him a reliable telephone number for contact purposes. For her part, she evidently made no attempt to contact her counsel and provide him with reasonable assistance in his efforts to contest the Department’s recommendations on her behalf. Once again, Mother’s lack of actual notice of the continued hearing dates can only be attributed to her own conduct.
Even if we assume that the failure to provide Mother with notice of the continued dates violated the requirements of section 294, subdivision (d), and those of constitutional due process, we conclude again that any such error was harmless beyond a reasonable doubt under the standard set out in Chapman, supra, 386 U.S. 18. Mother argues the error was prejudicial because she was thereby unable to appear and testify in support of her motion to vacate the section 366.26 hearing. Yet, Mother did have notice that the court had scheduled a hearing on her motion for October 2, 2006, but failed to appear on that date. Moreover, the declaration counsel submitted in support of the motion averred only that Mother had informed her counsel of the fact that she lacked actual notice of the proceedings until June 12, when Bernice gave her “paperwork indicating that the matter was set for a section 366.26 permanency planning hearing.” Her counsel argued that Mother’s lack of actual notice was due to improper notice. As we have discussed above, however, the notice given to Mother of the earlier proceedings was not improper, and her lack of actual notice of these proceedings can be attributed only to Mother’s deliberate act of making herself scarce. Even if we accept as true the hearsay statements in counsel’s declaration, Mother failed to provide her counsel with any additional facts that might have excused or mitigated her intentional disappearance. We conclude there is no reasonable doubt that had Mother appeared and testified, the juvenile court would have denied her motion to vacate, nevertheless, because she had no excuse for making herself unavailable to reasonable means of notice.
B. Ineffective Assistance of Counsel
Mother argues that her representation by appointed trial counsel was ineffective because her counsel failed to assert Mother’s right to receive reunification services under section 361.5, subdivision (d). Subdivision (d) of section 361.5 provides that “[i]f reunification services are not ordered pursuant to paragraph (1) of subdivision (b) and the whereabouts of a parent become known within six months of the out-of-home placement of the child, the court shall order the social worker to provide family reunification services.” Mother reasons that, because she appeared on July 31, 2006, less than six months after E. T.’s initial detention on February 18, the juvenile court was “required” to order services for her under this provision, and there can be no satisfactory explanation for her counsel’s failure to make this point.
To support a claim of ineffective assistance of trial counsel in a dependency proceeding, a parent must show, first, that his or her counsel failed to act in a manner to be expected of reasonably competent attorneys practicing in the field of juvenile dependency law. Second, the parent must show that the claimed error was prejudicial, in that it is reasonably probable that he or she would have obtained a more favorable result in the absence of the error. This two-prong test is essentially the same whether the parent’s claim is grounded on the statutory or constitutional right to effective assistance. (See In re Kristin H. (1996) 46 Cal.App.4th 1635, 1667-1668 [statutory claim under section 317.5]; In re Emilye A. (1992) 9 Cal.App.4th 1695, 1711-1712 [constitutional due process claim]).
In considering whether Mother has met her burden on the first prong of this test, we evaluate the reasonableness of her counsel’s performance from his perspective at the time of the alleged error and in light of all the circumstances—a highly deferential standard of review. (Kimmelman v. Morrison (1986) 477 U.S. 365, 381.) Moreover, Mother’s claim is raised on direct appeal. If the record on appeal does not clearly disclose the reason counsel made the alleged error, we affirm “unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation” for counsel’s act or omission. (See People v. Pope (1979) 23 Cal.3d 412, 426-427, overruled on other grounds in People v. Berryman (1993) 6 Cal.4th 1048, 1081, fn. 10, overruled on other grounds in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.)
We reject the proposition that there can be no satisfactory explanation for the failure of Mother’s counsel to argue Mother’s right to services under section 361.5, subdivision (d). By the time Mother appeared on July 31, 2006, the dispositional order had become final and was not subject to challenge in a reviewing court. (See § 366.26, subd. (l); Cal. Rules of Court, rules 8.450(e), 8.452(c).) If Mother’s counsel had simply requested services pursuant to section 361.5, subdivision (d), and had the juvenile court denied that request, there could have been be no successful appeal from such a ruling—the final order denying services entered on April 4 was conclusive. Although there is no express procedure in dependency law for a motion to vacate, it has been recognized as an appropriate means of challenging a final order on grounds of improper notice, as distinguished from a change in circumstances. (See DeJohn B., supra, 84 Cal.App.4th at pp. 105-106, 109.) Moreover, a defect in notice procedures may be forfeited on appeal if it is not first raised in the juvenile court. (See In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Thus, it is quite possible that Mother’s counsel did not raise the issue of section 361.5, subdivision (d), because he believed it was premature to do so until he had successfully litigated a motion to vacate the dispositional order on grounds of improper notice. The issue of entitlement to services was also premature because there was no reunification case plan in place for Mother. The juvenile court could not apply section 361.5, subdivision (d), in any meaningful way until the Department had an opportunity to reinstate its originally proposed case plan for Mother—something it could not do until the court set aside or modified the prior dispositional order denying services.
We note that this unusual situation was intended never to arise. The juvenile court is required to set a section 366.26 hearing only when services are denied under section 361.5, subdivision (b), paragraphs (2) through (15). (§ 361.5, subd. (f).) When it denies services under subdivision (b)(1), the proper procedure is to set the matter for a six-month status review hearing. If a parent’s whereabouts become known before that hearing, and that parent requests services, the agency then has the duty to seek a modification of the disposition order. (Cal. Rules of Court, rule 5.695(f)(8).)
But more importantly, we are not persuaded that Mother has satisfied the second prong of the test by showing actual prejudice. The Legislature, in enacting a provision of the dependency law cannot reasonably be expected to anticipate every conceivable problem of construction that may arise in its subsequent application. Thus, a provision such as section 361.5, subdivision (d), should not be given a literal meaning if it leads to absurd consequences the Legislature did not intend. Intent prevails over the letter of the law, and the letter of an enactment will be read in accordance with its spirit. (See In re C. C. (2003) 111 Cal.App.4th 76, 90.)
The intent underlying section 361.5, subdivision (d), is quite evident. The provision was designed to afford an opportunity to reunify to a parent who desires reunification, when that parent’s whereabouts are unknown during the initial stages of the dependency proceeding, but become known within a reasonable period thereafter—six months from the out-of-home placement.
Here we have a mother who, after giving birth to E. T., gave her into the care of a relative. Mother has never cared for E. T.—now six years of age—except for a matter of weeks from December 19, 2005, to February 16, 2006. Mother was, in a sense, not an absent parent at the outset of these proceedings. She had requested, and the Department was in the process of providing, services that would have enabled Mother to assume the care and custody of E. T. Yet, only one day after agreeing to the case plan for services the Department had developed and proposed for this purpose, Mother once again gave E. T. into the hands of relatives, and afterwards intentionally made her whereabouts unknown to the Department. If it is true, as Mother claims, that she did not have actual notice of the proceedings under the second petition until June 12, 2006, it is also apparent she did not, at that time, make herself known to the Department or even request visitation with her daughter. Mother waited over a month, until July 31, and made herself known only at the outset of the permanency planning hearing.
Mother essentially had her opportunity to reunify with E. T., or rather to unite with her for the first time. It was an opportunity she soon relinquished. The juvenile court was well aware of this. Even if Mother’s counsel had cited to section 361.5, subdivision (d), to argue Mother’s entitlement to reunification services, we cannot imagine that that court would have construed the provision so literally as to conclude that it was “required” to order further services for Mother regardless of the unique circumstances of this case. Accordingly, we conclude it is not reasonably probable that Mother would have obtained a more favorable result had the claimed error not occurred. (See In re Nada R. (2001) 89 Cal.App.4th 1166, 1180.)
That court, in giving its ruling on October 18, 2006, commented that Mother “was receiving services even before the filing of the petition [and] knew [that] Child Welfare Service was involved in her life and in her child’s life, and [Mother] absented herself from the proceedings.”
C. The Adoptability Finding
At a hearing to select a permanent plan for a child pursuant to section 366.26, the juvenile court “shall terminate parental rights and order the child placed for adoption” if it has found “by a clear and convincing standard[] that it is likely the child will be adopted” (§ 366.26, subd. (c)(1).) Accordingly, as part of its order of October 18, 2006, the juvenile court found that E. T. was likely to be adopted by “clear and convincing evidence” before it directed the termination of Mother’s parental rights.
Mother claims there was no substantial evidence to support this finding. In reviewing the challenged finding, we examine the record to determine whether there is substantial evidence to permit a reasonable judge to make the finding under the clear and convincing evidence standard. (In re Brian P. (2002) 99 Cal.App.4th 616, 623-624 (Brian P.); see also In re Isayah C. (2004) 118 Cal.App.4th 684, 694-695; In re Andrea G. (1990) 221 Cal.App.3d 547, 552.) In doing so, we view the evidence in the light most favorable to the finding, resolving all conflicts and indulging all reasonable inferences in its favor. (See In re Jasmine C. (1999)70 Cal.App.4th 71, 75; In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
When addressing the issue of adoptability, the juvenile court’s focus is on the child, and whether his or her age, physical condition, and emotional state make it difficult to find a person willing to adopt. It is not necessary that a proposed adoptive parent be waiting, so long as there is convincing evidence of the likelihood that adoption will take place within a reasonable time. (Brian P., supra, 99 Cal.App.4th at p. 624.) We also note that because Mother made no attempt to show the application of an exception making it detrimental to E. T. to terminate her parental rights, it would have been appropriate for the court to continue the matter without terminating her rights only after finding there was “no identified or available prospective adoptive parent for the child because of the child’s membership in a sibling group, or the presence of a diagnosed medical, physical, or mental handicap, or the child is the age of seven years or more.” (§ 366.26, subd. (c)(3), italics added.)
In its initial report prepared for the section 366.26 hearing, signed July 5, 2006, the Department noted that E. T. was a “healthy little girl.” She was participating in weekly counseling sessions to address certain behavioral issues that included breaking toys, smearing feces, hurting animals, and hurting herself. A prospective adoptive family had not yet been identified. The A. family, with whom E. T. was still placed at that time, was not willing to adopt E. T. Accordingly, this initial report recommended selection of a permanent plan of adoption, and requested that the court continue the matter for six months before terminating parental rights, in order to find a suitable adoptive family. (See § 366.26, subd. (c)(3).)
An addendum report, completed approximately one month later, included an adoption assessment dated July 24, 2006, prepared by the state Adoption Services Bureau (Bureau). The Bureau’s adoption specialist concluded that E. T. was adoptable. She noted E. T. was not a member of a sibling group. A review of her medical records indicated her physical condition was good. There had been no significant medical difficulties during her dependency. Developmentally, E. T. appeared to be “on par with her peers, ” seemingly interested in taking on tasks and showing a healthy “hesitance upon approaching a difficult piece of playground equipment that [was] new to her.” The Bureau’s specialist deemed E. T.’s mental health to be “fair.” While giving an initial impression of being a “delightful and fun-loving child without any worries, ” she ultimately demonstrated “multiple emotional and behavioral issues.” She exhibited, for example, a problem focusing her attention in an age-appropriate manner. On one occasion she had forgotten to hold onto a swing and then seemed “perplexed” as to why she then fell off the swing. Another concern was her “seeming inability” to maintain an age appropriate understanding of “healthy physical distances, ” with the result that she appeared to be too “indiscriminate around strangers.” Such behaviors suggested a “likelihood of past sexual abuse.” The specialist noted that the A. family had decided not to adopt E. T. because she had “brought to light [their] own unresolved childhood struggles with abuse and neglect.” Primarily, however, it was because E. T. was “locked in regular disputes with their children.” The Bureau specialist concluded E. T. needed to be placed with “diligent and skilled parents who are comfortable working through any attachment difficulties and routinely discussing healthy physical boundaries.”
The specialist was “confident” that such parents could be found, noting that she was currently assessing the suitability of “multiple families” who had shown interest in adopting her, and she was making additional efforts to locate others. Thus, her recommendation was that the court terminate the rights of both parents and select adoption as the permanent plan. The Department, in light of this assessment, revised its recommendation. It, too, requested immediate termination of parental rights and selection of the plan of adoption.
The Bureau specialist described E. T.’s mental health as “fair.” It does not appear that she had E. T. evaluated by a psychologist, and she offered no formal diagnosis of a mental handicap. Her discussion rather suggested that E. T.’s behavioral issues are the result of abuse and neglect, and might be adequately addressed by parents willing to address her “attachment difficulties” and her problems with “physical boundaries.” The specialist stated she was currently assessing the suitability of several such parents who had expressed interest in E. T. In sum, it does not appear that E. T. had no identified or available prospective adoptive parent because of a diagnosed mental handicap. To the contrary, most of the factors relating to her adoptability are positive. She is under seven years of age and has no siblings, and is both physically healthy and developmentally normal. (See § 366.26, subd. (c)(3).) In our view, the assessment overall supports the specialist’s expressed opinion that E. T. is adoptable, making that statement something more than a “bare statement” of opinion. (Cf. Brian P., supra, 99 Cal.App.4th at p. 624.) We conclude the evidence, viewed in the light most favorable to the court’s order, provides substantial evidence by which a reasonable judge could find E. T. likely to be adopted within a reasonable time under the clear and convincing evidence standard.
Respondent submitted a request that—with regard to issue of adoptability, we take judicial notice of a Department report submitted after the hearing on October 18, 2006. That request is hereby denied.
D. Compliance with ICWA Requirements
When Mother finally appeared in court on July 31, 2006, she informed the court that she might have Indian ancestry. Previously, the Department had reported that the ICWA did “not apply.”
Mother contends the order terminating her parental rights must be reversed because the Department and the juvenile court failed to satisfy rule requirements designed to ensure compliance with ICWA. (See Cal. Rules of Court, rule 5.664(b).) The Department, in its responding brief, essentially concedes it did not comply with the notice requirements of ICWA in this case. It argues, however, that the error warrants only a limited reversal.
We agree this is a proper case in which to reverse the order of October 18, 2006, but to direct that it be reinstated if, on remand, proper notice under ICWA is given and no tribe intervenes. (See In re Francisco W. (2006) 139 Cal.App.4th 695, 704-705.) Such a limited reversal is “well adapted to dependency cases involving termination of parental rights [when] the only error is defective ICWA notice.” (Id. at p. 705.)It is, moreover, consistent with the public policy underlying the dependency scheme, which favors a prompt resolution of dependency proceedings. (Id. at p. 706.)
Disposition
The order of October 18, 2006 is reversed and the proceeding is remanded to the juvenile court with directions to order the Agency to comply with the notice provisions of ICWA, and to file all required documentation with the juvenile court for that court’s inspection. If, after proper notice, a tribe claims E. T. is an Indian child, the juvenile court shall proceed in conformity with all the provisions of ICWA. If no tribe claims that E. T. is an Indian child, the order of October 18, 2006, terminating Mother’s parental rights, shall be reinstated.
We concur: Stein, J. Margulies, J.