IN RE: ZARIA C.

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Court of Appeal, Second District, California.

IN RE: ZARIA C., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. SABRINA R., Defendant and Appellant.

B231554

Decided: October 26, 2011

Amy Z. Tobin, under appointment by the Court of Appeal, for Defendant and Appellant. Andrea Sheridan Ordin, County Counsel, James M. Owens, Assistant County Counsel, and Jacklyn K. Louie, Principal Deputy County Counsel, for Plaintiff and Respondent.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Sabrina R.'s parental rights with respect to her daughter Zaria C. were terminated pursuant to section 366.26 of the Welfare and Institutions Code.1 Sabrina R. claims on appeal that the juvenile court's finding that Zaria C. was adoptable was not supported by substantial evidence and that the Department of Children and Family Services (DCFS) failed to give adequate notice under the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.)   (ICWA).  We reverse and remand with directions.

FACTUAL AND PROCEDURAL BACKGROUND

Long before Zaria C.'s birth in 2008, Sabrina R. had an extensive history with DCFS, starting in 2003 when she appeared mentally unstable and unable to parent her newborn child.   A Voluntary Family Maintenance case plan was initiated.   Over time, Sabrina R.'s five children were declared dependents of the juvenile court.   Sabrina R. was determined to have substance abuse problems, criminal involvement, and bipolar disorder.   Voluntary Family Maintenance case plans were initiated in 2008 and 2009.

By August 2009, DCFS had concluded that Sabrina R. was not complying with the Voluntary Family Maintenance plan and had learned that she had been arrested twice within the month.   DCFS detained one-year-old Zaria C. and filed a petition alleging that she fell within the jurisdiction of the juvenile court under section 300, subdivisions (b) and (g).  In January 2010, the juvenile court sustained the dependency petition and found Zaria C. to be a dependent child under section 300, subdivision (b).

Zaria C. had been born nine weeks premature in 2008.   An early assessment, conducted when she was five months old, indicated that her development was consistent with her age when adjusted for her prematurity, although she experienced muscle rigidity that inhibited her arm and torso movement.   Because this condition could potentially interfere with Zaria C.'s development of motor skills, the physical therapist who evaluated her recommended physical therapy and an occupational therapy evaluation.   Zaria C. was reported in March 2009 to have bowed legs and to be developmentally delayed due to her premature birth.   As of October 2009, she was receiving early intervention services.

DCFS reported in August 2010 that Zaria C. was in good health.   She had been receiving in-home services from the Regional Center as well as speech therapy.   She responded well to her therapy and was enthusiastic.   Zaria C. had no behavioral or emotional problems.   Zaria C. had been seen by an orthopedic surgeon because she was bow-legged, but the condition required no treatment.

Two sets of applicants were interested in adopting Zaria C. as of August 2010:  relatives in Iowa and Zaria C.'s former foster parents.   Ultimately, neither set of prospective adoptive parents proved suitable, for reasons unrelated to Zaria C.

As of March 2011, Zaria C. still had bowed legs, but they had improved and no treatment was necessary.   She continued to receive Regional Center services.   Developmental delays were “no longer an issue.”   Her speech had improved greatly.   An evaluation was pending to determine whether she would be eligible for Regional Center services after her third birthday.   Zaria C. was “really smart,” “fun-loving,” “happy,” and an appealing child.   DCFS believed it would be easy to find an adoptive home for her.   In March 2011, the juvenile court terminated Sabrina R.'s parental rights and freed Zaria C. for adoption.   Sabrina R. appeals.

DISCUSSION

I. Adoptability Finding

At a hearing under section 366.26, the court must select and implement a permanent plan for a dependent child.   Where there is no probability of reunification with a parent, adoption is the preferred permanent plan.  (In re Edward R. (1993) 12 Cal.App.4th 116, 122.)   To implement adoption as the permanent plan, the juvenile court must find, by clear and convincing evidence, that the minor is likely to be adopted if parental rights are terminated. (§ 366.26, subd. (c)(1).)   Then, in the absence of evidence that termination of parental rights would be detrimental to the child under statutorily-specified exceptions (§ 366.26, subd. (c)(1)(A)-(B)), the juvenile court “shall terminate parental rights.” (§ 366.26, subd. (c)(1).)   Here, the juvenile court found that Zaria C. was adoptable, and, finding no reason that the termination of parental rights would be detrimental to her, terminated Sabrina R.'s parental rights.

Sabrina R. appeals, claiming that the evidence was insufficient to support the juvenile court's ruling that Zaria C. was adoptable.   We review the factual basis of a termination 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.)

“The issue of adoptability posed in a section 366.26 hearing 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.]”  (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.)   Here, there was sufficient evidence for the juvenile court to find by clear and convincing evidence that Zaria C. was adoptable.   She was described as smart, fun-loving, and happy;  she was in good health;  she was young;  she had no signs of behavioral or emotional problems.   Although she had been receiving early intervention services, she had progressed with her speech, and it was not clear whether she would remain eligible for services past her third birthday.   While she was bow-legged, it had been determined that this did not require any surgical intervention or treatment.   Attributes such as young age, good physical and emotional health, progress in therapy, intellectual and academic growth, and ability to develop interpersonal relationships all tend to indicate that a child is adoptable.  (In re Sarah M., at p. 1651.)

Sabrina R. acknowledges this evidence, but claims that it was not clear and convincing.   Specifically, she focuses on the fact that the report from a routine developmental assessment had not yet been completed, and asserts that without that report, because Zaria C. was receiving Regional Center services for “an assessed developmental disability,” the court could not find by clear and convincing evidence that she was adoptable.   There was evidence before the court, however, of Zaria C.'s progress:  her earlier developmental delays were no longer an issue.   The evidence about Zaria C.'s age, personal characteristics, emotional and physical health, and her developmental progress was sufficient to permit the juvenile court to find, by clear and convincing evidence, that Zaria C. was adoptable.

The court's finding also is supported by the fact that two sets of prospective adoptive parents had already come forward to express interest in adopting Zaria C. Although the prospective adoptive parents had proven not to be suitable caregivers, a “prospective adoptive parent's 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, 22 Cal.App.4th at p. 1650.)

II. ICWA

The juvenile court and DCFS have an affirmative duty to inquire whether the child named in the dependency petition is or may be an Indian child (In re Desiree F. (2000) 83 Cal.App.4th 460, 469–470;  Cal. Rules of Court, rule 5.481), and to give notice by registered mail, return receipt requested, to the tribe of both the proceedings and the right to intervene.  (25 U.S.C. § 1912(a).)   Notices must be sent to all tribes of which the child may be a member or eligible for membership. (§ 224.2, subd. (a)(3).)

After an initial round of interviews and ICWA notices pertaining to heritage in the Blackfeet tribe, on January 27, 2010, Sabrina R. disclosed that she had Cherokee ancestry.   At a hearing, Sabrina R. told the court that her deceased father was a “full-blooded Cherokee Indian” whom, she had heard, at one point lived on a reservation.   She provided her father's name and birthday, and his date and place of death.   The maternal grandmother was asked under oath about Sabrina R.'s father.   She confirmed that her husband was Cherokee, gave his mother and grandfather's names, and stated where the family had previously lived.

The juvenile court concluded that the maternal grandmother “does not seem to know that any of the relatives were members of a tribe, or getting tribal benefits or registered.   Does anyone disagree with the court's analysis that this is really family lore?”   The court concluded that no further inquiry need be made with regard to the possible Cherokee heritage.

Sabrina R. and her mother may not have known with certainty whether the relatives in question were enrolled members of a tribe or received tribal benefits, but they provided information sufficient to demonstrate that Zaria C. may be an Indian child.   As Sabrina R. argues and County Counsel concedes, notice under ICWA should have been given to the federally recognized Cherokee tribes, the Bureau of Indian Affairs, and the Secretary of the Interior based on her disclosure that she was of Cherokee ancestry.   Because of the failure to provide the required notice based on the information concerning possible Cherokee membership or eligibility for membership, it was error for the juvenile court to conclude that ICWA did not apply.   The failure to send complete ICWA notices requires vacation of orders made without proper notice.   (See In re Jonathan D. (2001) 92 Cal.App.4th 105, 110–111.)

We therefore reverse and remand the order denying terminating parental rights, with directions to the court to order DCFS to provide proper ICWA notices consistent with the requirements of ICWA and California Rules of Court, rule 5.481.   If a tribe responds, indicates that Zaria C. is an Indian child, and seeks intervention, the relevant orders shall be vacated for her and proceedings consistent with ICWA conducted.   If no tribe responds that Zaria C. is an Indian child, or if no tribe seeks to intervene, the court shall reinstate its section 366.26 order.

DISPOSITION

The order terminating parental rights under section 366.26 is reversed and the matter is remanded to the juvenile court with directions that within 30 days of the remittitur, pursuant to ICWA and rules 5.481 and 5.482 of the California Rules of Court, DCFS investigate and provide the appropriate tribes and the Bureau of Indian Affairs with proper notice of the pending proceedings.

If, after notice is properly given, no tribe responds indicating that Zaria C. is an Indian child within the meaning of ICWA, the court shall reinstate its order terminating parental rights.   If a tribe determines that Zaria C. is an Indian child and seeks to intervene in the juvenile court proceedings, the juvenile court shall vacate the relevant orders and conduct all proceedings in accordance with ICWA and the California Rules of Court.

We concur:

FOOTNOTES

FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated..  FN1. All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.

PERLUSS, P. J. WOODS, J.