In re O.G. CA2/5 ( 2020 )

Filed 8/26/20 In re O.G. CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re O.G., a Person Coming B303106
Under Juvenile Court Law.
_______________________________ (Los Angeles County Super.
LOS ANGELES COUNTY Ct. No. DK08600C)
DEPARTMENT OF CHILDREN
AND FAMILY SERVICES,
Plaintiff and Respondent,
v.
K.G.,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, D. Brett Bianco, Judge. Affirmed.
Maryann M. Goode, under appointment by the Court of
Appeal, for Defendant and Appellant.
Mary C. Wickham, County Counsel, and Kim Nemoy,
Acting Assistant County Counsel, for Plaintiff and Respondent.
________________________
INTRODUCTION
Mother appeals from the juvenile court’s termination of her
parental rights to her medically fragile five-year-old. Mother
contends the evidence did not support the trial court’s finding
that the child was likely to be adopted. She also argues the
juvenile court and Los Angeles County Department of Children
and Family Services (DCFS) failed to comply with the Indian
Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.)
We conclude substantial evidence supported the juvenile
court’s finding that the child, who had lived in a medical facility
since infancy, would be adopted by a family that had a positive
history of adopting medically fragile children and demonstrated
means to care for the child. We also conclude the juvenile court
and DCFS conducted an adequate inquiry under ICWA, and the
court’s ICWA inapplicability finding was supported by
substantial evidence. We affirm the termination of parental
rights.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and father have three children (born 2004, 2011,
and 2014). On December 2, 2014, the children were taken into
protective custody. On December 8, 2014, DCFS filed Welfare
and Institutions Code section 300 petitions against the parents,
alleging drug use, emotional abuse of the children by father, and
neglect.1 On April 15, 2015, the court sustained the petition.
During the pendency of this case, the parents divorced. Mother
eventually reunified with the two older children,2 and on
1 All subsequent statutory references are to the Welfare and
Institutions Code unless indicated otherwise.
2 Father has not appealed the order terminating parental
rights.
2
February 23, 2017, the court terminated jurisdiction over the two
older children. Mother was awarded sole legal and physical
custody and father monitored visitation.3 Neither parent was
able to reunify with the child born in 2014 (son) and reunification
services were terminated on July 26, 2017. Only son, who was
two months old when dependency proceedings commenced, is at
issue in this appeal.
1. Son’s Medical Condition
As an infant, son was diagnosed with Crouzon’s Syndrome.
This was later re-diagnosed as Pfeiffer Syndrome Type II, a
genetic illness that resulted in severe structural abnormalities of
son’s face and skull, fluid buildup in his brain, bulging eyes, and
severe developmental disability. The syndrome has required
multiple surgeries in his young life and will likely require future
surgery. Son has been dependent on a g-tube for feeding.
Doctors reported that son likely would have a shortened lifespan.
In a report filed with the court, DCFS summarized the syndrome
as follows:
“ ‘Pfeiffer syndrome type II is characterized by a more
severe form of craniosynostosis (Cloverleaf skull)
with more severe hand and foot anomalies and
additional malformations of the limbs [than
Crouzon’s Syndrome]. In infants with Pfeiffer
syndrome type II, premature closure of the fibrous
joints (cranial sutures) between several bones in the
skull causes the skull to have a “tri-lobed”
appearance . . . Characteristic craniofacial features
associated with Pfeiffer syndrome type II may include
3 By this point in time, mother had given birth to her fourth
child who remained in her custody and is not subject to this
appeal.
3
an abnormally high, broad forehead; severe
protrusion of the eyes (ocular proptosis); an
unusually flat middle portion of the face (midface
hypoplasia); a “beak-shaped” nose; and downwardly
displaced ears. Affected infants may also exhibit
abnormal fixation and lack of mobility (ankylosis) of
the elbow joints and/or, in some cases, various
malformations of certain internal organs in the
abdomen (visceral anomalies). In addition, infants
with Pfeiffer syndrome type II often experience
impaired mental development and neurological
problems due to severe involvement of the brain,
and/or hypoxia due to problems with breathing.
Without appropriate treatment, the physical
abnormalities associated with the disorder may lead
to life-threatening complications during infancy[.]’
(National Organization for Rare Disorders, 2015.)”
Son had spent almost all of his life in hospital settings and
needed ongoing, round-the-clock, intensive medical care. In
addition to Pfeiffer Syndrome Type II, he was diagnosed with
failure to thrive, g-tube dependency, a history of cerebellar
tonsillar ectopy, and other medical disorders. Mother visited
(though inconsistently) and was an active participant in son’s
care, but struggled to complete the medical education necessary
to care for son while at the same time parenting her two older
children.4 She accepted that DCFS was looking for an adoptive
4 The trial court said that mother had made “valiant efforts”
to obtain necessary medical knowledge although it ultimately
concluded mother was unable to care for son.
4
placement for son and stated she would still like to visit him
when possible.
2. Adoptive Family Identified
For nearly two years, DCFS searched for an adoptive home.
The juvenile court scheduled multiple permanency hearings, only
to continue them because no prospective adoptive parent could be
found. On April 25, 2019, DCFS located a prospective adoptive
family, the Cs, who had a history of adopting special-needs
children. Mr. and Ms. C, who had been married for seven years,
were raising Ms. C’s 13-year-old biological daughter and three
adopted medically-fragile sons, one of whom was also adopted by
Mr. C. Ms. C also had two adult biological children who did not
reside in the home. The Cs had a substantial income and were
able to meet the family’s financial needs and provide for the
children’s medical care. They were highly motivated to adopt son
and provide him a loving and safe home. Their prior adoptions
were through DCFS, and the Cs understood the responsibilities
associated with adoption.
After DCFS completed pre-placement steps and assessment
of the home and family, the Cs and son began pre-adoptive visits
in July 2019. Son became closely attached to the Cs. The Cs
were committed to adopting son and willing to allow ongoing
contact between him and mother and his siblings in order to
maintain son’s familial connection. Mother was in agreement
with the plan as “it would be like [son] has 2 families that care
for him.” Son was placed in the Cs’ home on October 5, 2019.
Mother desired a collaborative effort between the two families,
and she requested a referral to the Consortium for Children.5
5 It appears mother thought she could establish through the
Consortium some agreement between the parties for visitation.
5
The last of several section 366.26 hearings was held on
November 20, 2019. Mother’s trial attorney objected to the
termination of parental rights. She also requested a continuance
since the case had not yet been referred to the Consortium for
Children.
The court proceeded with the permanency hearing. The
court found clear and convincing evidence of the child’s
adoptability and terminated parental rights. The court never
expressly stated whether son was generally or specifically
adoptable, but the court designated the child’s current
caretakers, Mr. and Mrs. C, as the child’s prospective adoptive
parents. In making its adoptability ruling, the court stated son
had been with the Cs for six months, the Cs had expressed a
commitment to adoption, and the Cs had taken at least one step
to facilitate the adoptive process.6
3. ICWA Inquiry and Findings
As mother contests the court’s ICWA inquiry and findings,
we address the chronology of the ICWA facts separately here.
On December 2, 2014, both parents denied Native
American ancestry to the social worker. Six days later at the
detention hearing, father filled out the ICWA-020 form claiming
Rappahannock ancestry through the paternal great-great-
grandmother. He also told the court at the hearing the paternal
great-great-grandmother was 100 percent Rappahannock Indian.
The court ordered DCFS to investigate the claim and to send out
notices if appropriate.
On December 23, 2014, the social worker re-interviewed
the parents and asked father about his Native American
ancestry. Father stated: “ ‘my paternal great grandmother[’s]
6 Son had actually been living with the Cs for six and a half
weeks, and had known the Cs for approximately five months.
6
. . . mother was somehow involved with the Rappahannock Indian
Tribe, but I have no other information. Actually, now that I
think of it, we do not have any American Indian Heritage. Just
document that in there. There is no American Indian Heritage.
There is none. I don’t know why I said that in Court, but maybe
it has something to do with the advice that I received from my
lawyer, but not sure. All I can tell you now is that there is no
known American Indian blood in my ancestry. I apologize for the
confusion.’ ” At the social worker’s insistence, father provided the
names and information for several family members including the
paternal grandparents, great-grandparents and great-great-
grandparents.
The social worker unsuccessfully tried to locate the
Rappahannock tribe in the Federal Registry. The social worker
reported that he also tried to search the tribe through a Google
online search to no avail. In February 2015, DCFS advised the
court the Rappahannock Indian Tribe was not listed on the
Federal Registry.7 On January 19, 2018, the juvenile court found
no reason to believe that the ICWA applied. The court did not
state the basis for its finding.
DISCUSSION
Mother argues the court erred in finding son adoptable and
in concluding ICWA did not apply without further inquiry of the
paternal relatives. We address each argument in turn.
1. Substantial Evidence Supports the Court’s
Adoptability Finding
Mother argues insufficient evidence supported the trial
court’s finding of adoptability. Whether a child is likely to be
7 DCFS efforts to identify the Rappahannock Tribe took
place in 2014 and early 2015. Apparently, the tribe became
federally recognized in January 2018.
7
adopted is the “pivotal question” under section 366.26. (In re
Tamneisha S. (1997) 58 Cal.App.4th 798, 804.) In order for a
juvenile court to terminate parental rights under section 366.26,
the court must find by clear and convincing evidence that it is
likely that the child will be adopted. (§ 366.26, subd. (c)(1).) We
review whether there was substantial evidence to support a
finding of adoptability under the heightened standard of review
set by our Supreme Court. (Conservatorship of O.B. (2020)
9 Cal.5th 989, 1005.) When “presented with a challenge to the
sufficiency of the evidence associated with a finding requiring
clear and convincing evidence, the [appellate] court must
determine whether the record, viewed as a whole, contains
substantial evidence from which a reasonable trier of fact could
have made the finding of high probability demanded by this
standard of proof.” (Ibid.)
When, as here, the child satisfies criteria so that he or she
is considered difficult to place for adoption, the dependency court
may terminate parental rights only if the court finds the child is
“specifically” adoptable, meaning adoptable by an identifiable
person. (In re R.C. (2008) 169 Cal.App.4th 486, 494 [specific
adoptability applies due to child’s age, poor physical health,
physical disability, or emotional instability].) To find a child
specifically adoptable, the court must identify prospective
adoptive parents who intend to adopt the child if the court frees
the child for adoption. “ ‘When a child is deemed adoptable only
because a particular caretaker is willing to adopt, the analysis
shifts from evaluating the characteristics of the child to whether
there is any legal impediment to the prospective adoptive
parent’s adoption and whether he or she is able to meet the needs
of the child.’ ” (Ibid.) If a legal impediment exists that bars the
prospective adoptive parents from adopting the children, the
court must not terminate parental rights—to do so risks making
8
the children legal orphans if no other adoptive parents step
forward. (In re Carl R. (2005) 128 Cal.App.4th 1051, 1061–1062
(Carl R.).)
On appeal, mother concedes there were no legal
impediments to adoption by the Cs. The record shows Ms. C had
no disqualifying criminal or child-abuse history. Though Mr. C
had several old traffic citations and two offenses for driving while
under the influence in 1998 and 2014, DCFS reviewed the
relevant court and police records, noted Mr. C successfully
completed all court requirements, and found that Mr. C posed no
safety concerns. On this information, DCFS granted him a
criminal exemption to clear him for son’s adoption. The record
also reflects that the five state-certified and licensed home-health
nurses who provided care for the C family – two of whom were
hired to work directly with son – found no disqualifying issues.
Ms. C’s adult adopted son, who also resided in the family home,
had no disqualifying criminal history.
Mother argues the court’s adoptability finding was
premature and based on a misgiving that the child had been
living with the Cs for over six months. Mother asserts son barely
knew the Cs. Mother correctly points out the child was placed
with the Cs six and a half weeks, not six months, prior to the
order terminating parental rights. This misapprehension
notwithstanding, we conclude substantial evidence supports the
adoptability finding.
The Cs had been interested in adopting son since April
2019, and had “many preplacement visits with [son]” prior to his
placement in their home on October 5, 2019. Contrary to
mother’s assertion that son did not know the Cs, the ongoing pre-
placement visits and eventual placement in the Cs’ home created
a close attachment between son and the Cs. From the time they
were told about son in April 2019, until the termination of
9
parental rights in November 2019, the Cs, who had previously
adopted three special-needs, medically-fragile children through
DCFS, never wavered in their commitment to adopt son.
That the Cs appeared uniquely qualified for this adoption –
or that son was specifically adoptable by the Cs, to use the legal
standard – was supported by substantial evidence. They had the
financial wherewithal to provide him round-the-clock care to
address his Pfeiffer Syndrome, failure to thrive, g-tube
dependency, history of cerebellar tonsillar ectopy, and cranial
issues. They were highly motivated to adopt son in order to
provide him a loving and safe home. The Cs had already proved
they were capable of caring for son because they were already
caring for three other medically fragile children.
In her argument that insufficient evidence supported the
adoptability finding, mother refers us to three cases: In re
Helen W. (2007) 150 Cal.App.4th 71 (Helen W.), Carl R., supra,
128 Cal.App.4th 1051, and In re Valerie W. (2008)
162 Cal.App.4th 1 (Valerie W.). None of the cases is apt and
Helen W. and Carl R. actually affirm a finding of adoptability.
In Helen W., the appellate court affirmed that the child was
adoptable even though the severity of the children’s medical and
psychological conditions were not yet known. The appellate court
concluded that their foster mother of two years was fully aware of
their conditions and was willing to adopt. (Helen W., supra,
150 Cal.App.4th at pp. 79-80.) In Carl R., the child had lived in a
medical facility from infancy until he was freed for adoption at
eight years old. (Carl R., supra, 128 Cal.App.4th at p. 1058.) The
Carl R. court concluded that the adoptive family’s history of
providing a good home for disabled children and their resources
to care for the child supported the finding of specific adoptability.
(Id. at pp. 1064-1065.) In our view these cases support the
juvenile court’s adoptability finding. Son’s condition was well-
10
documented, the Cs had a history of raising special-needs
children, they had a history of adopting children through DCFS,
and they had the means to meet son’s needs—employing five
home-health nurses, two of whom exclusively worked with son.
In Valerie W., the appellate court found the adoptability
finding unsupported and reversed. But the facts are quite
different from the present appeal. The prospective adoptive
parents were not provided with the results of genetic and
neurological testing of the child, testing that had been
recommended because of seizures and other medical issues. The
juvenile court also failed to consider whether there were legal
impediments to the planned adoption by the child’s caregiver and
her adult daughter. (Valerie W., supra, 162 Cal.App.4th at
pp. 13-14.) In contrast, the record here does not reveal any
withheld medical tests or other medical information. Rather, the
Cs appeared to be well-aware of son’s extensive medical
conditions and his needs to the point that they had already hired
two nurses to care exclusively for him. There were no legal
impediments to adoption.
We conclude the record does not support mother’s stated
concerns for a failed adoption. What the record reflects is that
after five years of living in a medical facility, son now had a
chance for a home life with family that had both the expertise
and the commitment to care for him.
2. DCFS and the Court Satisfied ICWA
Mother argues the order terminating parental rights must
be reversed because DCFS and the court failed to investigate
father’s Rappahannock heritage. “We review a court’s ICWA
findings for substantial evidence.” (In re Austin J. (2020)
47 Cal.App.5th 870, 885 (Austin J.).)
“Under California law, the court and county child welfare
department ‘have an affirmative and continuing duty to inquire
11
whether a child,’ who is the subject of a juvenile dependency
petition, ‘is or may be an Indian child.’ [Citations.] The child
welfare department’s initial duty of inquiry includes ‘asking the
child, parents, legal guardian, Indian custodian, extended family
members, others who have an interest in the child, and the party
reporting child abuse or neglect, whether the child is, or may be,
an Indian child and where the child, the parents, or Indian
custodian is domiciled.’ (§ 224.2, subd. (b).)” (Austin J., supra,
47 Cal.App.5th at p. 883.) DCFS is required to “make further
inquiry regarding the possible Indian status of the child” if it has
“reason to believe” the child is an Indian child (§ 224.2, subd. (e)),
and give notice to the tribe where it has “reason to know” the
child is an Indian child (25 U.S.C. § 1912, subd. (a); § 224.2,
subd. (f)).
Here, father initially denied Indian heritage, then later
stated the paternal great-great-grandmother was of the
Rappahannock tribe, and ultimately changed his statement and
steadfastly denied Indian heritage. We conclude that, after the
father’s recantation, neither the court nor the social worker knew
or had reason to know that son might be an Indian child. The
information available did not meet the “reason to know” criteria
set forth in the federal regulations and the California ICWA
statutes. (See 25 U.S.C. § 1912, subd. (c); § 224.2, subd. (d).) No
one had unequivocally informed the court or DCFS that son was
an Indian child. There was no suggestion son had ever lived on a
reservation or had been a ward of a tribal court, and there was no
indication that the child or his parents possessed a tribal
identification card. (See 25 C.F.R. § 23.107, subds. (c)(1), (3)-(6);
§ 224.2, subd. (d)(1), (3)-(6).) Instead, the court reasonably found
credible father’s adamant denial of Native American ancestry.
Mother did not testify otherwise. Substantial evidence supported
the trial court’s ICWA finding.
12
Mother likens the present case to In re Gabriel G. (2012)
206 Cal.App.4th 1160, 1167-1168 (Gabriel G.) in arguing further
inquiry was required. There, the father’s unsigned Parental
Notification of Indian Status (ICWA-020) form indicated that the
paternal grandfather “ ‘is or was a member’ ” of the Cherokee
tribe. (Id. at p. 1163.) However, a social worker later reported
that the father had been interviewed and stated he had no Indian
heritage. (Id. at p. 1164.) The report did not explain whether the
social worker probed the discrepancy or asked the father to
elaborate on the information in his ICWA-020 form. (Ibid.)
The Gabriel G. court found: “[T]he social worker’s
representation in the [DCFS] report did not provide any specifics
regarding the inquiry he made of father as to his Indian heritage.
For example, the social worker did not state whether he limited
his inquiry to father’s registration in a federally recognized tribe
or inquired about the registration status of father’s relatives. . . .
On the record before us, we cannot discern whether father meant
to convey that while he was not a registered member of a
Cherokee tribe, his own father was registered. [¶] At a
minimum, a conflict in the evidence exists.” (Gabriel G., supra,
206 Cal.App.4th at p. 1167.) The appellate court concluded the
social worker and juvenile court had a duty of further inquiry,
and that notice was required to be sent to the Cherokee tribes in
the absence of information reliably rebutting father’s Cherokee
heritage. (Id. at p. 1168.)
To the extent that Gabriel holds that any conflict in the
ICWA evidence automatically triggers a duty of further inquiry,
we respectfully disagree with the decision. But our facts also
differ. Here, the social worker specifically followed up with
father asking about his Native American ancestry. Father,
whose words are transcribed in DCFS records filed with the
court, stated he was “an African American male of Black descent”
13
and expressly denied any Native American ancestry, stating:
“ ‘we do not have any American Indian Heritage. Just document
that in there. There is no American Indian Heritage. There is
none. I don’t know why I said that in Court, but maybe it has
something to do with the advice that I received from my lawyer,
but not sure. All I can tell you now is that there is no known
American Indian blood in my ancestry. I apologize for the
confusion.’ ”
This case more closely resembles In re Jeremiah G. (2009)
172 Cal.App.4th 1514 (Jeremiah G.). There, a father vaguely
stated at a hearing that he “might have some Indian heritage”
but needed to do further research. (Id. at p. 1516.) Three weeks
later, he told the agency and the court he did not have Indian
heritage. Upon further inquiry from the court, the father’s
counsel indicated he initially thought he might have Indian
ancestry but later retracted the claim. (Ibid.) On that record, the
appellate court affirmed the juvenile court’s finding that ICWA
did not apply. (Ibid.)
With a similar record, we agree that the trial court did not
err in finding that ICWA did not apply.
DISPOSITION
The order terminating parental rights is affirmed.
RUBIN, P. J.
WE CONCUR:
MOOR J.
KIM, J.
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