Opinion
NOT TO BE PUBLISHED
Super. Ct. Nos. DPSQ995383, DPSQ056119, DPSQ056120
HULL, J.
D.K. (Mother), the mother of nine-year-old R.K., seven-year-old Dominick K. and five-year-old S.K., appeals from a juvenile court order terminating her parental rights. (Welf. & Inst. Code, §§ 366.26, 395; further section references are to the Welfare and Institutions Code unless otherwise specified.) She contends (1) the evidence of adoptability was insufficient, (2) the trial court gave insufficient weight to the sibling bond, and (3) the Sutter County Department of Human Services (the Department) failed to comply with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.). We will remand the matter for further ICWA proceedings.
Facts and Proceedings
The petitions
In September 2005, the Department filed petitions alleging that the children were within the provisions of section 300, subdivisions (b) and (g), in that:
(1) When a school transporter attempted to drop off R.K. and Dominick at their residence, no one was present to meet them.
(2) The boys’ residence, a trailer, had no running water or bathroom facilities. The boys were unkempt and unprepared to leave for school when the transporter arrived at 6:30 a.m.
(3) The children’s father tested positive for marijuana and methamphetamine.
(4) The father yelled profanities and engaged in out-of-control behavior at the children’s protective service officer.
(5) In 1999, R.K. was detained and placed in foster care due to the parents’ alcohol and drug abuse. The parents completed six months of family reunification services and 12 months of family maintenance services.
(6) The father has a criminal history dating back to 1994 and two arrests in 2005.
(7) Mother has a criminal history dating back to 1998 when she was 16 years old. A warrant was pending for Mother’s arrest.
(8) Mother’s whereabouts were unknown.
Detention hearing
The social worker’s report for the detention hearing noted that ICWA does or may apply. Mother did not appear at the detention hearing. Counsels were appointed for Mother and the children. The juvenile court ordered the children detained.
Jurisdiction hearing
Mother was not present at the jurisdiction hearing. Her counsel submitted on the social worker’s report. The trial court found true every allegation except the 1999 allegation that Mother completed six months of family reunification services, wherein the trial court found no relevance.
Disposition hearing
Mother was not present at the disposition hearing in November 2005. Her counsel reported having had no contact with her. Her counsel again submitted on the social worker’s report. The children were adjudged dependent children and retained in foster care. Reunification services were ordered for Father but not for Mother.
Interim review hearings
Mother’s counsel attended the December 2005 review hearing but Mother did not. The court scheduled a review hearing for February 2006. Neither parent attended the February 2006 hearing. A six-month review hearing was confirmed.
Six-month review hearing
Mother made her first appearance in court at the six-month review hearing in April 2006. There was discussion whether Mother would file a section 388 modification petition seeking reunification services; on appeal, Mother effectively concedes that she did not do so. The trial court ordered all previous orders to remain in effect and scheduled a 12-month review hearing for October 2006.
The Department’s s ection 388 petition
In June 2006, prior to the 12-month review hearing, the Department filed section 388 petitions seeking to terminate Father’s reunification services and schedule a section 366.26 hearing. The petitions alleged that since March 2006, Father had not drug tested, complied with his case plan, or visited the children. He violated probation and fled the state. Following a contested hearing, the court granted the section 388 petition, terminated Father’s reunification services, vacated the 12-month review hearing, and scheduled a section 366.26 hearing for October 2006.
Section 366.26 hearings
The social worker’s September 2006 report for the section 366.26 hearing contained a September 2006 adoption assessment from the Department of Social Services’ Adoptions Services Bureau. The assessment noted that Dominick had asthma, severe speech problems and developmental delays. Mother reportedly had hit Dominick on the head using a metal baseball bat. A neurological examination to assess brain damage was pending. The foster mother believed six-year-old Dominick was developmentally like a two-year-old.
The adoption assessment noted that when R.K. entered the foster home, he was aggressive with peers and siblings and would abruptly lose his temper. His therapist worked with him on aggression, lying, stealing and response to limit-setting.
The assessment noted that S.K., who had appeared to have been the most traumatized, was doing well behaviorally and emotionally.
The adoption assessment found that the prospective parents, who had been the foster parents since October 2005, had “expressed a desire to adopt the children.” The document’s “preliminary assessment indicate[d] the minors’ foster parents are suitable for adoption.” The assessment recommended that, without terminating parental rights, the court select adoption as the permanent plan and continue the matter for 180 days “to further stabilize and assess the children’s behaviors.”
At the section 366.26 hearing in October 2006, the trial court chose adoption as the permanent plan, found that it was likely the children would be adopted if the parents’ rights were terminated, and found that the children were not Indian children. The hearing was continued to April 2007.
The social worker’s April 2007 report for the continued section 366.26 hearing noted that Dominick was in a special day class and a speech program due to his severe speech delays. R.K. had been suspended from school several times for behavioral outbursts, cussing, and inappropriate sexualized language. After a suspected child abuse report was submitted regarding the foster parents, R.K. was placed by himself in a new foster home and his siblings, Dominick and S.K., were placed together in a different foster home. Both sets of new foster parents expressed interest in adoption.
While it is somewhat unclear from the report, it appears that on or about January 30, 2007, the Department received a seven-day notice from an unidentified author to have “him,” evidently R.K., removed from his foster home for an unspecified reason. Following a meeting with Community Care Licensing and their foster family agency, the foster parents decided, for reasons not revealed in the report, that they no longer wanted R.K. in their house. Then in March 2007, the foster parents revoked their foster parent certification, thus ejecting Dominick and S.K. from the house. Thus, the report does not reveal the extent to which the removal of R.K. was based on factors personal to him as opposed to issues involving the foster parents.
The report recommended that the section 366.26 hearing be continued another 180 days “in order to better assess the adoptability of the children by their current foster homes.” At the April 2007 continued hearing, the court further continued the hearing to October 2007.
The social worker’s report for the October 2007 continued hearing stated that the children were developing appropriately and were not clients of the local regional center. Dominick had been assessed for, but did not qualify for, its services.
The report noted that R.K. was doing well in his foster home, and the foster parents continued to state that they wished to adopt him. Following an altercation with his foster sister, R.K. was observed appearing to choke himself and was taken for a psychological evaluation. He was found not to require a psychiatric hold and was released to the foster mother. The Department had received reports of R.K. fighting with his foster siblings and using foul language.
The report noted that Dominick and S.K. were doing well in their foster home. Dominick expressed his desire to be adopted by the foster family, and S.K. expressed that she liked where she was living. A referral alleging that the foster mother had slapped another child in the household had not yet been resolved.
The report contained an adoption assessment addendum from the Adoptions Services Bureau. The addendum indicated that R.K.’s foster mother needed to address some mental health issues, and both foster parents needed to address the parenting skills necessary to parent R.K. The foster parents’ home study was on hold pending successful completion of services. The therapist for Dominick and S.K. had opined that their prospective foster mother was overwhelmed.
The social worker filed an addendum report that continued to recommend termination of parental rights. The addendum noted that, as a result of the incident of the child being slapped, the foster parents of Dominick and S.K. had withdrawn their application to adopt the children. It was unknown when the children would be moved to a new foster home.
No testimony was taken at the continued section 366.26 hearing. The court found by clear and convincing evidence that all three children were adoptable. Both parents’ parental rights were terminated.
Discussion
I
Insufficient Evidence of Adoptability
Mother contends there is insufficient evidence to prove that the children are adoptable and likely to be adopted within a reasonable time. We disagree.At oral argument, the Department contended that Mother waived her challenge to the sufficiency of the evidence of adoptability by conceding at the 366.26 hearing that the children were adoptable. The Department relies on Mother’s counsel having made the following statement during argument to the court urging the court to consider a guardianship or long-term foster care or at least, if the children were to be adopted, that they remain in the same family:
“She does not want her parental rights terminated, obviously, but I have tried to explain today the children are adoptable, and I told her State Adoptions found them adoptable, and people seem to want to adopt them so she understands that’s the issue.”
We do not find the statement by counsel sufficient to conclude that Mother waived this argument. We read the statement as counsel telling the court that he had explained to Mother that the children were considered adoptable by others, including “State Adoptions.” Counsel’s statement cannot be deemed an agreement by Mother that, indeed, the children were adoptable. The argument has not been waived.
To terminate parental rights, “the [juvenile] court must find by clear and convincing evidence that it is likely that the child will be adopted.” (In re Asia L. (2003) 107 Cal.App.4th 498, 509; see also § 366.26, subd. (c)(1).) There must be “convincing evidence of the likelihood that adoption will take place within a reasonable time.” (In re Brian P. (2002) 99 Cal.App.4th 616, 624.)
On appeal, we must uphold the finding of adoptability and termination of parental rights if they are supported by substantial evidence. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) We “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.) “In selecting a permanent plan for an adoptable child, there is a strong preference for adoption over nonpermanent forms of placement. [Citation.]” (In re Zachary G. (1999) 77 Cal.App.4th 799, 809.)
The issue of adoptability “focuses on the minor, e.g., whether the minor’s age, physical condition, and emotional state make it difficult to find a person willing to adopt the minor. [Citations.] Hence, it is not necessary that the minor already be in a potential adoptive home or that there be a proposed adoptive parent ‘waiting in the wings.’ [Citations.]” (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649; see In re Zeth S. (2003) 31 Cal.4th 396, 406.)
The existence or suitability of the prospective adoptive family, if any, is generally not relevant to the issue of adoptability. (In re Sarah M., 22 Cal.App.4th at p. 1649; In re Scott M. (1993) 13 Cal.App.4th 839, 844.) And evidence concerning the existence of a legal impediment to the adoption of a particular child by prospective adoptive parents is relevant only when, due to the child’s characteristics, the child would be considered unadoptable except for the existence of specifically identified prospective adoptive parents. (In re Sarah M., at p. 1650; see In re Scott M., at p. 844; Fam. Code, § 8600 et seq.)
The fact that a prospective adoptive family is willing to adopt the minor is evidence that the minor is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)
In this case, the September 2006 adoption assessment reported that the previous foster parents had expressed a desire to adopt the children. After the children were moved in early 2007, both sets of new foster parents expressed interest in adoption. Thus in each child’s case, two prospective adoptive families had expressed a willingness to adopt. This is evidence that each child is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) The willingness of two families to consider each child’s adoption demonstrates that no child’s characteristics caused the child to be considered unadoptable. Thus, the existence of impediments to adoption by the most recent prospective adoptive parents was not relevant at the section 366.26 hearing. (In re Sarah M., supra, 22 Cal.App.4th at p. 1650; In re Scott M., supra, 13 Cal.App.4th at p. 844; Fam. Code, § 8600 et seq.)
Contrary to Mother’s principal argument, the Department did not concede--and the juvenile court did not find--that the children were “difficult to place” for adoption.
Section 366.26, subdivision (c)(3), states in relevant part: “If the court finds that termination of parental rights would not be detrimental to the child . . . and that the child has a probability for adoption but is difficult to place for adoption and there is no identified or available prospective adoptive parent, the court may identify adoption as the permanent placement goal and without terminating parental rights, order that efforts be made to locate an appropriate adoptive family for the child . . . within a period not to exceed 180 days. . . . For purposes of this section, a child may only be found to be difficult to place for adoption if thereis 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.” (Italics added.)
In this case, the section 366.26 hearing was continued for two successive intervals of 180 days. But at the time of each continuance, a different prospective adoptive family had been identified. By statute, the juvenile court was prohibited from finding that the children were “difficult to place for adoption.” (§ 366.26, subd. (c)(3).) Mother’s claim that the court so found has no merit.
At oral argument, Mother relied on a recent holding by the Court of Appeal, Fourth District, Division One in In re Valerie W. (2008) 162 Cal.App.4th 1 (Valerie W.) where the court found the evidence of adoptability in that matter insufficient to terminate parental rights. But Valerie W.’s holding in this regard was premised on an inadequate assessment report prepared pursuant to section 366.26, former subdivision (i), which report, among other things, failed to assess the eligibility and commitment of prospective adoptive parents and failed to address whether there was a legal impediment to adoption by prospective adoptive parents.
As we have earlier explained, the issue here is different than the issues in Valerie W. because there is no challenge to the sufficiency of an assessment report or the court’s reliance on it to determine adoptability. Further, this is not a case where the children were deemed adoptable based solely on a particular family’s willingness to adopt the children. Thus, Valerie W. does not aid Mother’s argument.
The findings that the children were adoptable are supported by substantial evidence. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.)
II
The Sibling Exception to Adoption
Mother contends the juvenile court erred by failing to apply the sibling exception to the statutory preference for adoption. (§ 366.26, subd. (c)(1)(B)(v).) We disagree.
“‘At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’ [Citation.] If the court finds the child is adoptable, it must terminate parental rights absent circumstances under which it would be detrimental to the child.” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.) There are only limited circumstances which permit the court to find a “compelling reason for determining that termination [of parental rights] would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of establishing the existence of any circumstances which constitute an exception to termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1373; In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Evid. Code, § 500.)
One circumstance under which termination of parental rights would be detrimental to the minor is when “[t]here would be substantial interference with a child’s sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child’s best interest, including the child’s long-term emotional interest, as compared to the benefit of legal permanence through adoption.” (§ 366.26, subd. (c)(1)(B)(v).)
In this case, Mother did not attempt to meet her burden of establishing the existence of the sibling exception. (In re Cristella C., supra, 6 Cal.App.4th at p. 1373; In re Melvin A., supra, 82 Cal.App.4th at p. 1252.) At the last section 366.26 hearing, her counsel voiced Mother’s belief that all three children should be together. However, counsel offered no evidence suggesting that reuniting the three siblings was in their best interest. In particular, he offered no evidence to counter the fact that both R.K. and Dominick wished to be adopted by their then-current foster families, even though such adoptions would to some extent separate them. On appeal, Mother does not contend that counsel possessed sufficient evidence but failed to present it. We find no error.
III
The Indian Child Welfare Act
Mother contends the Department failed to comply with the notice requirements of ICWA. We shall remand for further ICWA proceedings.
Background
R.K. was the subject of a prior dependency proceeding in 1999. At that time the parents advised a social worker that R.K. might be an Indian child. Father “provided names of ancestors belonging to the Cherokee Nation in Oklahoma.” Mother “stated that she may have relatives belonging to a Native American tribe in Susanville, California.”
The disposition report in the present case indicates that, according to the maternal grandmother, Mother is not of Indian Heritage and there is no Indian Heritage on the maternal side of the family. The report stated that notice was being sent to the Bureau of Indian Affairs and the Cherokee Tribes, since notice had been sent to them during the previous dependency.
The report for the December 2005 interim review hearing included a November 2005 letter from the Susanville Indian Rancheria stating that its records did not reflect that either parent or any child is a member of, or eligible for membership in, the Susanville Indian Rancheria.
The report for the February 2006 review hearing included letters from the Eastern Band of Cherokee Indians stating that the children were not registered or eligible to register as members of the tribe.
The October 2006 report for the section 366.26 hearing requested a finding that ICWA does not apply to this case. The report noted that the Eastern Band of Cherokee Indians and the Susanville Rancheria had indicated that the children were not members or eligible for membership; neither the United Keetoowah Band of Cherokees nor the Cherokee Nation of Oklahoma had responded to the notices of proceedings within 60 days. At the October 2006 hearing, the trial court found that the children were not Indian children.
Analysis
ICWA protects the interests of Indian children and promotes the stability and security of Indian tribes by establishing minimum standards for, and permitting tribal participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.) To facilitate participation, notice of the pending proceeding and the right to intervene must be sent to the tribe or to the Bureau of Indian Affairs if the tribal affiliation is not known. (25 U.S.C. § 1912; § 224.2, subd. (a).) Once notice is provided, it must be sent for each subsequent hearing until it is determined that the ICWA does not apply. (§ 224.2, subd. (b); In re Marinna J. (2001) 90 Cal.App.4th 731, 736.)
Because the principal purpose of ICWA is to protect and preserve Indian tribes, a parent’s failure to raise an ICWA notice issue in the juvenile court does not bar consideration of the issue on appeal. (In re Marinna J., supra, 90 Cal.App.4th at p. 739; see Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1.)
The Department sent ICWA notice for the United Keetoowah Band of Cherokee Indians to the “ICWA Representative, P.O. Box 370, Park Hill OK 74451.” In a recent case cited by Mother but overlooked by the Department, this court held that this address had been superseded and its use was error. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 783.)
In Nicole K. the error was held prejudicial because, although a signed return receipt for the notice had been received, the record contained no evidence that the signature was that of a tribal representative. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 784.) The prejudice in this case is starker because no return receipt was ever received.
We note that we have denied the Department’s request to augment the record with a June 2006 letter from the United Keetoowah Band because it had not been before the juvenile court. (See In re Zeth S., supra, 31 Cal.4th at p. 405.)
On remand, the Department shall provide ICWA notice to the designated agent for the United Keetoowah Band at the most recent address listed in the federal register. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 785.)
Mother appears to contend the ICWA notice to the Susanville Rancheria was inadequate because notices were not sent to the three Indian nations--Maidu, Paiute and Pit River--that comprise the Susanville Rancheria. However, the Susanville Rancheria’s response indicated that its records had been searched, and nothing in the appellate record suggests the search failed to include records from the constituent Maidu, Paiute or Pit River nations.
Mother points out that the Maidu, Paiute and Pit River tribes each affiliate with reservations in addition to the Susanville Rancheria. Thus, the Susanville Rancheria is one of five branches of the Pit River tribe, one of six branches of the Maidu tribe, and one of 25 branches of the Paiute tribe. Mother thus contends ICWA notice should have been sent to 33 tribal entities in addition to the three at the Susanville Rancheria.
However, Mother’s claim of ancestry in “a Native American tribe in Susanville” did not assert membership in any Rancheria or reservation anywhere other than Susanville. She does not assert that any branch of the Maidu, Paiute or Pit River tribes, other than the three at the Susanville Rancheria, is in fact located in Susanville or uses the word “Susanville” in its title. Thus, unlike a person who claims “Cherokee” heritage who could thereby assert ancestry in one or more of the three federally recognized Cherokee tribes, Mother’s claim of ancestry in “a Native American tribe in Susanville” did not refer to any branch of any federally recognized tribe other than the three at the Susanville Rancheria.
In any event, although Mother had claimed that “she may have relatives belonging to a Native American tribe in Susanville” (italics added), the maternal grandmother subsequently advised the social worker that Mother “is not of Indian Heritage and there is no Indian Heritage on the maternal side of the family.” Mother points to no evidence that her mother was incorrect. Absent such evidence, any error in connection with the notice to the Susanville Rancheria could not have been prejudicial.
Disposition
The orders terminating parental rights are conditionally vacated and the matter is remanded for the purpose of providing ICWA notice to the designated agent for the United Keetoowah Band of Cherokee Indians at the most recent address listed in the federal register. If the tribe responds that the children are Indian children or eligible for enrollment, the court shall proceed as required by ICWA. If the tribe responds that the children are not Indian children or eligible for enrollment, the court shall reinstate the order terminating parental rights.
We concur: BLEASE, Acting P.J. BUTZ, J.