In Re KB
McKINSTER, J.—
The parents of Ka.B., Kr.B. and D.B. appeal from an order terminating their parental rights and placing the children for adoption. (
FACTUAL AND PROCEDURAL HISTORY
Ka.B, Kr.B. and D.B. and their half sister, Ke.B. (hereafter Ka., Kr., D. and Ke.), were the subjects of a prior dependency proceeding which was initiated in August 2001 and terminated in December 2003 with the four children being returned to the mother‘s custody.3 The petition, which was filed before D. was born, alleged that the mother‘s residence was filthy; that the mother left the children with an unrelated caretaker for an extended period without providing adequately for their care and support, thus placing the children at risk of serious physical harm; that the children were extremely dirty and that their health needs were not being provided for; that the mother and the father of Ka. and Kr. had a history of criminal behavior; and that the fathers were not providing support. The father of Ka. and Kr. (i.e., the appellant father in this appeal) was in prison on drug charges, and the whereabouts of Ke.‘s father were unknown. When D. was born in February 2003, a petition was filed as to him, but he remained in the physical custody of the mother. The mother successfully reunited with the children, and the petition was dismissed in December 2003.
The father was released from prison on parole during the pendency of the prior proceeding, but because of a prior conviction for lewd and lascivious acts on a child under the age of 14 (
The current petition was filed on March 9, 2004. It alleged that the father, who was living with the family in violation of the conditions of his parole,5 had molested Ke., then 14 years old, and that the mother knew or reasonably should have known that the children were at risk of sexual abuse. The
During the prior dependency proceeding, the father informed the Riverside County Department of Public Social Services (DPSS) that he might have Indian ancestry. No action was taken to notify the appropriate tribal authorities pursuant to ICWA before that case was dismissed. When the current petition was filed, the father‘s information was ignored, and no inquiry was made of either parent as to possible Indian ancestry. The father also failed to inform the court that ICWA might apply. The father asserted for the first time in his appeal from the original termination order in the current proceeding that the court had failed to comply with the notice provisions of ICWA. (In re K.B., supra, E039777.) We affirmed the juvenile court‘s finding that the children are adoptable, but reversed the termination order and remanded the cause for the limited purpose of providing the mandatory notice to the appropriate tribal authorities. We ordered that “If, after proper notice, a tribe claims the minors . . . as Indian children, the juvenile court shall proceed in conformity with all provisions of ICWA.” (Ibid.)
Following remand, notice was given, and on May 31, 2007, the Choctaw Nation of Oklahoma determined that the children had Choctaw heritage and that they were Indian children within the meaning of ICWA.7 The father was recognized as a member of the tribe on June 30, 2007. On August 27, 2007, the juvenile court found that ICWA applied. The tribe intervened but did not assert jurisdiction. It chose instead to review all filings in the case, to work directly with the social worker and to make recommendations. Several months later, after having received the reports filed by DPSS, the tribe stated that it was in agreement with termination of parental rights and the plan for adoption. It originally asked that all family members be considered as
On June 5, 2008, at the scheduled hearing on termination of parental rights, the parents asked the court to vacate all prior orders as having been rendered in violation of ICWA. The court conducted a hearing and determined that the substantive requirements of ICWA had been met and that the earlier failure to give notice as required by ICWA was not prejudicial. The court then conducted a hearing pursuant to
LEGAL ANALYSIS
FAILURE TO COMPLY WITH ICWA DOES NOT DEPRIVE THE COURT OF JURISDICTION TO ENTER DISPOSITION ORDERS
(1) Both ICWA and the Welfare and Institutions Code provide that any party seeking an involuntary foster care placement of an Indian child must satisfy the court that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (
At the scheduled
After hearing argument and reviewing the file and this court‘s opinion in In re S.B. (2005) 130 Cal.App.4th 1148 [30 Cal.Rptr.3d 726], the court
The parents now contend, as they did below, that the juvenile court lacked jurisdiction to enter disposition orders placing the children in foster care because the court failed to comply with ICWA‘s notice provisions.
(2) We agree with the line of cases which holds that failure to comply with ICWA‘s notice provisions does not divest courts of jurisdiction to remove an Indian child from the custody of the parents. (See, e.g., In re Antoinette S. (2002) 104 Cal.App.4th 1401, 1410-1411 [129 Cal.Rptr.2d 15]; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 785 [53 Cal.Rptr.3d 251]; but see In re Desiree F. (2000) 83 Cal.App.4th 460, 474-475 [99 Cal.Rptr.2d 688]; In re Samuel P. (2002) 99 Cal.App.4th 1259, 1267 [121 Cal.Rptr.2d 820].) Accordingly, we reject the parents’ contention.
(3) DPSS contends that the juvenile court lacked the authority to entertain the request to invalidate the disposition order in any event, because in the prior appeal, we reversed only the order terminating parental rights. When a judgment is reversed with directions, the trial court‘s jurisdiction is limited by those directions. (In re N.M. (2008) 161 Cal.App.4th 253, 264 [74 Cal.Rptr.3d 138].) DPSS is correct that our opinion reversed only the final order for purposes of compliance with ICWA‘s notice provisions. However, we also directed that if the children were found to be Indian children, the trial court must proceed “in conformity with all provisions of ICWA.” (In re. K.B., supra, E039777.) As noted above, ICWA permits the parents to petition the juvenile court to invalidate prior orders. (
“ACTIVE EFFORTS” TO PREVENT BREAKUP OF THE FAMILY WERE NOT REQUIRED BEFORE THE DISPOSITION HEARING
(4) In a dependency proceeding which does not involve an Indian child, the court must “make a determination as to whether reasonable efforts were made to prevent or to eliminate the need for removal of the minor from his or her home or, if the minor is removed for one of the reasons stated in paragraph (5) of subdivision (c), whether it was reasonable under the circumstances not to make any of those efforts.” (
At the disposition hearing, which was held before the court was on notice that ICWA might apply, the court found that “reasonable efforts” had been made to prevent or to eliminate the need for removal of the children from their home. The parents contend that a finding of “reasonable efforts” is a lower standard than the finding of “active efforts” required by ICWA and by
We disagree that the standard enunciated in In re S.B., supra, 130 Cal.App.4th 1148 is the correct standard of review in this case. Unlike the court in In re S.B., the juvenile court in this case, in ruling on the motion to invalidate the prior orders, found that active efforts were made prior to the disposition hearing. Consequently, if we were to review this finding, we would do so by applying the substantial evidence rule. (See, e.g., In re Michael G. (1998) 63 Cal.App.4th 700, 715-716 [74 Cal.Rptr.2d 642].) We need not engage in a substantial evidence review, however: As we discuss below, we can determine, as a matter of law, that even if the court had been on notice that ICWA might apply, it was not required to find that active efforts were made before placing the children in foster care.
The parents also contend that because no services were offered to the father before the disposition hearing, the court could not find that active efforts within the meaning of ICWA had been made to prevent the breakup of the family. Services were denied to the father based on
(5) In Letitia V. v. Superior Court (2000) 81 Cal.App.4th 1009 [97 Cal.Rptr.2d 303] (Letitia V.), the court held that ICWA does not require a juvenile court to offer reunification services to a parent who failed, in prior dependency proceedings, to reunify with her children, despite active efforts having been made to assist her in overcoming her drug dependency. The court held that offering services as to a later born child, after previous reunification efforts had failed, would be an idle act not required by ICWA. (Letitia V., at pp. 1015-1018.) The court explained that the phrase “active efforts” means only that “timely and affirmative steps be taken to accomplish the goal which Congress has set: to avoid the breakup of Indian families whenever possible by providing services designed to remedy problems which might lead to severance of the parent-child relationship.” (Id. at p. 1016, italics added.) Thus, the court reasoned, where the parent‘s history indicates the futility of offering services, no further services must be offered. (Id. at pp. 1016-1017.)
Here, in contrast to Letitia V., supra, 81 Cal.App.4th 1009, the father had not previously been offered services. Nevertheless, his history clearly demonstrates the futility of offering reunification services: He is a registered sex offender with a prior conviction for lewd and lascivious acts on a child under the age of 14. (
(6)
At the
We first address the parents’ contention that the court‘s active efforts finding cannot be upheld because the services provided to the mother before our reversal of the prior termination order did not amount to active efforts within the meaning of
Whether active efforts were made is a mixed question of law and fact. (E.A. v. State Div. of Family and Youth Services (Alaska 2002) 46 P.3d 986, 989.) We can determine what services were provided by reference to the record. Whether those services constituted “active efforts” within the meaning of
(7) Neither ICWA nor its California counterpart defines active efforts. (
(8) Here, in the prior dependency, DPSS provided numerous services to the mother. She was referred to a 90-day inpatient substance abuse program and to counseling. She completed both. She was referred to a parenting class, which she completed. DPSS also provided her with homemaking assistance and assistance in finding housing, including providing her with resources to find shelter housing and to find available permanent housing and providing monetary assistance with rent. It provided her with bus passes to assist her in attending the programs and to facilitate visitation with her children. In the current dependency, DPSS also referred her to Parents United, a program designed to educate parents on issues of sexual abuse and to help them learn to protect their children from sexual abuse. The mother told DPSS that she had learned a great deal from that program. It is abundantly clear that DPSS did more than merely draw up a reunification plan and leave the mother to use her own resources to bring it to fruition. (See A.M. v. State (Alaska 1997) 945 P.2d 296, 306; A.A. v. State, supra, 982 P.2d at p. 261.) On the contrary, DPSS provided the mother with the resources necessary to achieve the goals of her case plan. This constitutes “active efforts” within the meaning of ICWA.12
As to the father, active efforts were not required for the same reason they were not required prior to the disposition order placing the children in foster
The parents also contend that the termination order cannot be sustained because no services were provided after the remand. Neither cites any authority which supports their contention. ICWA requires that an order terminating parental rights be supported by a finding that active efforts were made but were unsuccessful. (
The parents also argue that the termination order cannot be sustained because DPSS failed to comply with the requirement that the active efforts “be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child‘s tribe. Active efforts shall utilize the available resources of the Indian child‘s extended family, tribe, tribal and other Indian social service agencies, and individual Indian caregiver service providers.” (
ACTIVE EFFORTS WERE MADE TO FIND APPROPRIATE FAMILY MEMBERS WITH WHOM TO PLACE THE CHILDREN
(9) ICWA provides that in an adoptive placement of an Indian child, in the absence of good cause to the contrary, preference shall be given to a
(10) The parents contend that DPSS made insufficient efforts to place the children with extended family members. They couch their arguments in terms of the court‘s duty to find that “active efforts” were made to assess maternal relatives and contend that such efforts were not made.
The record shows that in 2005, the mother‘s two sisters and her mother were approached as possible placements. One maternal aunt in Ohio was interested in taking the children but the Interstate Compact on the Placement of Children (
The other maternal aunt and the maternal grandmother live together. Their placement request was initially denied because the maternal aunt did not return the forms DPSS sent her. She later did so, and the placement request was submitted to the Relative Assessment Unit. The father contends that the record is silent as to the outcome of that assessment. However, the record shows that at the time maternal relatives were assessed at the beginning of the case, “the mother was living with [the maternal aunt and grandmother] and [their home] could not be approved.” The record also shows that the aunt had convictions for felony burglary, receiving stolen goods and forgery. In 2007, the maternal grandmother‘s home was again assessed, this time as a possible placement for the youngest child, M. One report states that this home was rejected in July 2007, because the mother was living there “off and on.” It also states that DPSS was concerned that the grandmother would not be able to protect the child. The next report states that the mother was still living with the maternal grandmother and had not provided the information necessary to complete background checks for “the adults” living in the home. The record thus demonstrates that the maternal relatives were assessed not once but twice. As far as the record shows, the second assessment of the
The parents do not mention the paternal relatives. Nevertheless, we note the following: The paternal grandfather was deceased, and although the paternal “grandparents”13 were interested in adopting M., their two-bedroom apartment could not accommodate the other three children. The father did not suggest any other relatives for consideration. We are not aware of anything further DPSS could have done to assess paternal relatives.
As we have noted elsewhere, the prospective adoptive father is a registered Cherokee. Placement with an Indian family is the third level of preference, as stated in
SUBSTANTIAL EVIDENCE SUPPORTS THE FINDING THAT THE CHILDREN ARE ADOPTABLE
(11) Before terminating parental rights, the court must find by clear and convincing evidence that it is likely that the child will be adopted within a reasonable amount of time. (
The parents contest the court‘s finding that the children are adoptable. They argue that the record shows that the children are not generally adoptable because of their various special needs and because they are a sibling group. They contend that in the absence of evidence that children are generally adoptable, there must be clear and convincing evidence that there is an approved prospective adoptive family which is interested in adopting the children. Although a home study of the prospective adoptive parents has been completed, the prospective adoptive parents have not yet been approved. Therefore, the parents contend, the court‘s finding that these special-needs children are adoptable must be reversed.
(12) As we have discussed elsewhere, remand with directions limits the scope of the trial court‘s jurisdiction. (In re N.M., supra, 161 Cal.App.4th at p. 264.) In this case, we directed that the order terminating parental rights could be reinstated if the court found, after proper notice, that ICWA did not apply. (In re K.B., supra, E039777.) Accordingly, if ICWA did not apply, the juvenile court would not need to hold a new termination hearing. Because ICWA was found to apply, however, it was necessary to conduct a new termination hearing in order for the court to make the requisite ICWA findings discussed above. In order to enter a new order terminating parental rights, the court was also required to find, again, that the children are adoptable. (
As the parents assert, the children are special-needs children as defined in
The parents contend that there is no evidence that the children are generally adoptable, and that in the absence of evidence that they are generally adoptable, the finding of adoptability cannot be sustained in the absence of evidence that there is an “approved” prospective adoptive family which has expressed interest in adopting them. They contend that even though the prospective adoptive parents have stated that they are willing to adopt the children, the fact that they have not yet been “approved” to adopt them requires reversal of the finding of adoptability.
Although a finding of adoptability must be supported by clear and convincing evidence, it is nevertheless a low threshold: The court must merely determine that it is “likely” that the child will be adopted within a reasonable time. (
(13) It is well established that if a child has special needs which render the child not generally adoptable, a finding of adoptability can nevertheless be upheld if a prospective adoptive family has been identified as willing to adopt the child and the evidence supports the conclusion that it is reasonably likely that the child will in fact be adopted within a reasonable time. (See In re Sarah M. (1994) 22 Cal.App.4th 1642, 1650 [28 Cal.Rptr.2d 82]; see also In re Scott M. (1993) 13 Cal.App.4th 839, 844 [16 Cal.Rptr.2d 766].) Here, the children had been residing with their prospective adoptive parents since October 2005. It had been reported since 2002 that Kr. and Ka. had developmental delays resulting from fetal alcohol syndrome, and all three children had speech and educational problems. Ka. had apparently at some earlier point exhibited the behaviors that motivated the prospective adoptive mother‘s request for a psychiatric evaluation. Despite these problems, the prospective adoptive parents wished to adopt the children, and they remained committed to adopting the children as of the date of the termination hearing, despite the continuing and perhaps increased difficulties described by the parents. There is no evidence that the adoption will not take place as soon as the legal process permits. (14) This is sufficient to support the conclusion
The parents, however, deduce from Jerome D., supra, 84 Cal.App.4th 1200, a rule that a special needs child can be deemed adoptable only if an “approved” prospective adoptive parent exists. We disagree that this is the rule.
In Jerome D., a willing prospective adoptive parent—the mother‘s former boyfriend, with whom the child had been placed, along with two younger half siblings—had been identified but not yet approved as of the date of termination of the mother‘s parental rights. (Jerome D., supra, 84 Cal.App.4th at pp. 1203-1205.) However, there were significant potential impediments to approval of the prospective adoptive father which the adoption assessment did not address. Among other things, he and the child‘s mother had a history of domestic violence in the presence of the children, which had resulted in three convictions of the prospective adoptive father. Despite having completed a domestic violence program, twice, the prospective adoptive father had again been arrested for battering the mother and for violating a restraining order. He was also “`listed as a perpetrator‘” with child protective services for emotionally abusing his nephews and niece. (Id. at p. 1203.) The court held that under these circumstances, the mere fact that an identified person had expressed willingness to adopt the child was not sufficient to support a finding that the child was adoptable. (Id. at pp. 1204-1206.) As we understand Jerome D., it was not the fact that the prospective adoptive father had not been approved prior to the termination of parental rights which mandated reversal of the adoptability finding, but rather the fact that there were serious impediments to his ever being approved. Here, the parents do not identify any potential impediments to the eventual approval of the prospective adoptive parents.
In In re Asia L., supra, 107 Cal.App.4th 498, on which the parents also rely, the court held that it was not sufficient that the foster parents had expressed willingness to “explore the option” of adopting the two special-needs children. (Id. at p. 512.) The court held that in the absence of evidence that “some family, if not [that] family” would be willing to adopt the children, the evidence failed to demonstrate that there was a likelihood that the children would be adopted. (Id. at p. 512.) Thus, there too, the issue was not whether there was an “approved” adoptive family available but whether
DISPOSITION
The judgment is affirmed.
Ramirez, P. J., and King, J., concurred.
Notes
In any event, the expert who testified at the