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In Re D.G. et al., Persons Coming Under the Juvenile Court Law. v. T.G

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


January 4, 2011

IN RE D.G. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES, PLAINTIFF AND RESPONDENT,
v.
T.G., DEFENDANT AND APPELLANT.

(Super. Ct. Nos. JD228998, JD229000, JD229001)

The opinion of the court was delivered by: Raye , P. J.

In re D.G.

CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Mother (T.G.) appeals from the juvenile court's orders terminating her parental rights and implementing a permanent plan of adoption as to minors D.G. (a male born in summer of 2008) and female twins L.G. and Y.G. (born in summer of 2007). (Welf. & Inst. Code, § 366.26.)*fn1 Father (D.G., Sr.) has not appealed.

Mother contends (1) the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) was not complied with, and (2) the juvenile court erred by finding the minors adoptable. We shall affirm.

FACTUAL AND PROCEDURAL BACKGROUND*fn2

On January 12 and 13, 2009, the Sacramento County Department of Health and Human Services (the Department) filed section 300 petitions as to the minors, alleging: The parents had failed to feed D.G., aged five months, and he was hospitalized for severe failure to thrive. Mother tested positive for marijuana at the time of D.G.'s birth, had a substance abuse problem, and had gotten no prenatal care; father also had a history of marijuana use.

Initially, D.G. was placed in emergency detention and the older minors were returned to the parents under dependent supervision. However, on January 30, 2009, the Department applied for a protective custody warrant for the older minors, alleging that both parents had untreated substance abuse problems, father also had a severe mental health problem, and the parents had cooperated minimally with the Department.

On February 5, 2009, the Department filed amended section 300 petitions, adding allegations that the parents continued to drug test positive, father had bipolar disorder with hallucinations, and mother had bipolar disorder with depression.

The jurisdiction/disposition report, filed February 3, 2009, recommended out-of-home placement for the minors with reunification services for the parents. The older minors were subsequently detained.

An addendum report filed March 30, 2009, alleged: Father had been convicted of resisting a peace officer. Both parents were still testing positive for marijuana and failing to participate in services. The minors were doing well in foster care.

At the jurisdiction/disposition hearing on April 6, 2009, the juvenile court made the recommended orders.

On August 27, 2009, the Department recommended transferring the minors to a permanent plan of adoption at the six-month review hearing.

The six-month review report, filed September 4, 2009, recommended terminating the parents' services because the parents had separated and father had left town, mother had participated minimally in services, and aside from visiting the minors, the parents had not complied with their case plans.

At the six-month review hearing on September 17, 2009, the juvenile court terminated the parents' services and set a permanent plan of adoption for the minors.

The selection and implementation report, filed December 28, 2009, recommended terminating the parents' rights and proceeding to adoption. The minors were placed together, and the foster parents had been cleared for adoption. The minors were specifically adoptable because they were a sibling set and D.G. had developmental delays in speech and language.

On January 21, 2010, mother filed section 388 petitions seeking to reopen services or to obtain the minors' return under dependent supervision.

On January 26, 2010, the juvenile court held a combined section 388/section 366.26 hearing. After finding mother had shown no change in circumstances, the court denied her section 388 petitions, then ordered the termination of parental rights and adoption.

DISCUSSION I. Compliance with icwa

Mother contends ICWA was not complied with in two respects: there was insufficient proof that all tribes required to receive notice had done so, and the information given the tribes was so defective that they could not conduct meaningful searches. We conclude mother has failed to show prejudicial error.

Background The first notice

At the initial hearings on January 13 and 15, 2009, the parents filled out ICWA-020 forms. Mother claimed Choctaw ancestry; father claimed "Mohigun" ancestry.

On January 15, 2009, the juvenile court directed the Department to give notice to the Choctaw and Mohegan tribes and directed the parents to fill out ICWA questionnaires.

On January 23, 2009, before she was able to speak to the parents or any known relatives, Department paralegal Phyllis Olivares sent notice (based only on a family history given by mother as a juvenile dependent 10 years before) to the Jena Band of Choctaw Indians, the Mississippi Band of Choctaw Indians, the Choctaw Nation of Oklahoma, the Mohegan Indian Tribe, the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, the Cherokee Nation of Oklahoma, and the Stockbridge-Munsee Community of Wisconsin,*fn3 as well as the Secretary of the Interior and the Sacramento-area Director of the Bureau of Indian Affairs (BIA).

The second notice

On February 6, 2009, after the parents had spoken to Olivares, she sent out amended notices to the tribes and agencies.

Olivares declared that mother now claimed Cherokee and Blackfeet heritage (not Choctaw); father now claimed Mohegan and Cherokee heritage. Mother thought her father's mother was Native American, but did not know the tribe; mother had little information about the paternal side of her family. Olivares was able to contact the maternal great-grandmother, who provided what information she had; she did not claim enrollment with a tribe.

Father claimed Mohican or Mohegan and Cherokee ancestry from the maternal side of his family; his father was not Native American. Olivares contacted the paternal grandmother, who confirmed that the paternal grandfather was not Native American; she said the family had Cherokee ancestry, but not Mohican or Mohegan ancestry. According to the paternal grandmother, no family member was a member of or enrolled in any tribe. Father did not return Olivares's follow-up calls.

Olivares mailed ICWA-030 forms (030 form) for both parents, with an attached family tree for mother, to the United Keetoowah Band of Cherokee Indians, the Eastern Band of Cherokee Indians, the Cherokee Nation of Oklahoma, the Blackfeet Tribe of Montana, the Mohegan Indian Tribe, and the Stockbridge-Munsee Community of Wisconsin, along with the Secretary of the Interior and the local office of the BIA.

In addition to the parents' names, current addresses, birth dates and places, and claimed tribal affiliations, the 030 forms gave information about the maternal grandparents and great-grandparents (including two persons called "mother's biological grandmother (child's maternal great-grandmother))," the paternal grandparents, and one paternal great-grandparent.

Mother's family tree identified one of the persons called "maternal great-grandmother" on the 030 form as the paternal great-grandmother. It also showed a full set of great-great-grandparents and three even more remote ancestors (the parents of one great-great-grandparent and one parent of the other great-great-grandparent).

All relatives on both sides were said either to have a possible tribal affiliation but with band and location unknown, or to have no known Indian ancestry.

On February 25, 2009, Olivares filed a "declaration of receipt of ICWA postal return receipt cards and correspondence." A table showed the dates the tribes received the second notice, the dates return receipts were filed, and the dates responses were filed (none as yet). According to the table, the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, the Mohegan Indian Tribe, and the Stockbridge-Munsee Community of Wisconsin had received the second notice on February 12 or 13, 2009, as shown by post office "track and confirm" online forms; the United Keetoowah Band of Cherokee Indians and the Blackfeet Tribe of Montana had received the second notice on February 17, 2009. Return receipts were filed as to all the tribes on February 25, 2009.

Certified mail return receipt cards were attached from the United Keetoowah Band of Cherokee Indians and the Blackfeet Tribe of Montana. For the other four tribes, "track and confirm" postal forms were attached, showing the tribe's name, the juvenile court case numbers, the "label/receipt number," the status ("delivered"), and the statement "Your item was delivered at [specified time and date] in [specified town or city and state]."

The third notice

At a prejurisdiction status conference hearing on February 26, 2009, the parents were asked to inspect the 030 forms. Father requested three corrections, including a material correction to his mother's name.

At the juvenile court's direction, on March 4, 2009, Olivares sent a correction letter containing this new information to the tribes. She did not resend the 030 forms and materials previously sent.

On March 13, 2009, Olivares filed a new "declaration of receipt of ICWA postal return receipt cards and correspondence." A table showed that the Department had now received negative responses to the second notice from the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the Blackfeet Tribe of Montana; the United Keetoowah Band of Cherokee Indians, the Mohegan Indian Tribe, and the Stockbridge-Munsee Community of Wisconsin had not yet responded to that notice. The table (and attached return receipt cards) also showed that all the tribes had received the third notice (correction letter), although only a "track and confirm" notice was indicated as to the Eastern Band of Cherokee Indians; no tribe had yet responded to the third notice.

On March 17, 2009, Olivares filed a "declaration of receipt of ICWA return receipt cards" stating that she had now filed return receipt cards from all the tribes as to the third notice, though none had yet responded to it.

On April 3, 2009, Olivares filed a "declaration of receipt of ICWA postal return receipt cards and correspondence." The attached table and materials showed that the Cherokee Nation of Oklahoma, the Eastern Band of Cherokee Indians, and the Blackfeet Tribe of Montana had now returned negative responses to the third notice, while the United Keetowah Band of Cherokee Indians, the Mohegan Indian Tribe, and the Stockbridge-Munsee Community of Wisconsin had not yet responded to that notice.

On May 7, 2009, Olivares filed an "informational memorandum" stating that no further responses to the third notice had come in.

The ICWA hearing

On May 14, 2009, the juvenile court held an ICWA compliance hearing. The court stated:

"I have received the latest of the informational memorandums filed May 7th which gives a history of the noticing that has been accomplished in this case. The January 23rd notices and the subsequent notice of February 6th. And additionally, the latest of notices March 4th, and that's after the parents had reviewed the ICWA-030 that was sent out previous[ly].

"So it appears that the most accurate and detailed information that went out did so and the tribes received the last of those notices March 9th.

". . . So utilizing the dates upon which the tribes received notice, the latest of the dates is March 9th, even the Eastern Band by track and confirm.

"Several of the tribes have responded these are not Indian children[.]

"The United Keetoowah Band and the Mohegan . . . and the Stockbridge-Munsee . . . Community of Wyoming [sic; Wisconsin] did not respond. However, they all received the notice March 9th as I indicated and 60 days has [sic] elapsed from that time and their silence is indicative that the children are not Indian children.

"I am prepared to make the findings at this time."

After county counsel noted that the Stockbridge-Munsee Community had responded negatively to the second notice, all counsel submitted the matter.

The court ruled: "[A]dequate inquiry has been made. We have noticed with the best information that was available to us with diligence, and sufficient time has elapsed and the tribes have either indicated not Indian children, not eligible for enrollment or their silence is indicative of such. These are not Indian children. No further notice is required unless further information comes forward."

Analysis

The purpose of the ICWA notice provisions is to enable the tribe or the BIA to investigate and determine whether the children are Indian children. (In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) To that end, once the juvenile court has received information that gives reason to believe a child is an Indian child, notice under ICWA must be given. (In re Robert A. (2007) 147 Cal.App.4th 982, 989.) Notice requirements are construed strictly. (Ibid.)

Notice must include all of the following information, if known: the child's name, birthplace, and birth date; the name of the tribe in which the child is enrolled or may be eligible for enrollment; names and addresses of the child's parents, grandparents, great-grandparents, and other identifying information, and a copy of the dependency petition. (§ 224.2, subd. (a)(5)(A)-(D); In re Mary G. (2007) 151 Cal.App.4th 184, 209.)

Because ICWA is mainly intended to protect and preserve Indian tribes, a parent's failure to raise a claim of ICWA notice violation in the juvenile court does not forfeit the issue on appeal. (In re J.T. (2007) 154 Cal.App.4th 986, 991; Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 783, fn. 1; In re Marinna J. (2001) 90 Cal.App.4th 731, 738-739.)*fn4

Where tribes have received ICWA notice, any error as to that notice is subject to harmless error review. (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 784.)

A. Notice

Mother contends the proof of ICWA notice on which the juvenile court relied is inadequate because the Department filed return receipt cards from only two tribes as to the critical second notice -- the only one that gave all available information.*fn5 According to mother, the postal service "track and confirm" forms submitted by the Department as to the other four tribes are both legally and factually insufficient to prove notice; therefore, it is impossible to know whether some of the tribes ever received the second notice. We are not persuaded.

Section 224.2, subdivision (c) provides that the Department must file copies of ICWA notices sent "and all return receipts and responses received[.]" California Rules of Court, rule 5.482(b) (rule 5.482(b)), which implements this provision, states: "Proof of notice filed with the court must include Notice of Child Custody Proceeding for Indian Child (form ICWA-030), return receipts, and any responses received from the [BIA] and tribes." Contrary to mother's apparent position, the Department complied with these provisions by filing the return receipts it had received. Neither provision states that proof of notice is inadequate unless it includes return receipts from every noticed tribe, or that no other evidence of receipt is acceptable.

Mother cites several decisions for the proposition that the agency "'"should provide to the juvenile court a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the minor's status."' [Citation.]" (In re Mary G., supra, 151 Cal.App.4th at p. 209; see also In re Asia L. (2003) 107 Cal.App.4th 498, 507; In re Marinna J., supra, 90 Cal.App.4th at pp. 739-740, fn. 4.) However, these decisions add nothing on this point to section 224.2, subdivision (c) and rule 5.482(b): like those provisions, they simply say that the agency should provide the juvenile court with copies of whatever return receipts it has obtained. The decisions do not purport to hold that any materials provided by an agency that do not include return receipts from all noticed tribes are insufficient as a matter of law.

Mother also cites Tina L. v. Superior Court (2008) 163 Cal.App.4th 262, 267, which she construes to hold: "California law now requires that copies of the signed return receipts be filed with the juvenile court; it was error to proceed absent this proof." However, the agency there failed to give the juvenile court copies of any return receipts. (Ibid.) Thus, like the decisions cited above, this decision does not hold that an agency violates ICWA by providing the juvenile court with copies of return receipts from some tribes and other evidence of receipt as to other tribes, or that the court violates ICWA by proceeding on such evidence.

Finally, mother cites In re Glorianna K. (2005) 125 Cal.App.4th 1443, 1451, for the proposition that letters received from tribes in response to ICWA inquiry "cannot provide the necessary level of proof [of receipt] that signed return receipts would provide." This decision does not so hold. The court merely found, on the precise facts before it, that a letter from a tribe failed to establish notice to that tribe because (1) the record did not contain a copy of the notice to which the letter responded, and (2) the tribe had not responded to a later notice that gave new information. (125 Cal.App.4th at pp. 1446-1451.)

In short, while signed return receipts are unimpeachable evidence of receipt, nothing in any statute, rule of court, or case law cited by mother declares that other forms of evidence of receipt are legally insufficient. So far as mother claims that only return receipts will do, she has failed to support that claim.

Mother asserts that "track and confirm" notices show only that an item was delivered to a particular city on a particular date, not to whom it was delivered or when it was actually received by its intended recipient. However, "[a] letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail." (Evid. Code, § 641.) Mother does not assert that any ICWA notice sent in this case was not correctly addressed or properly mailed.*fn6 Thus, the burden is on her to show affirmative evidence in the record that any tribe did not receive the second notice and that any failure to do so could be prejudicial. As we shall explain, she cannot meet this burden.

Mother asserts we cannot be sure the Stockbridge-Munsee Community of Wisconsin received the second notice, although it sent negative responses on February 12, 2009, and on March 23, 2009, because the responses were identically-worded form letters that could have been addressed either to the second notice (sent February 6, 2009) or to the third notice (sent March 4, 2009). This point lacks merit.

We normally presume official duty was regularly performed. (Evid. Code, § 664.) Mother cites no authority holding that this presumption does not apply to issues arising under ICWA. Thus (absent contrary evidence, which mother does not cite) we presume the tribe sent a response to each notice it received. We see no reason why the tribe could not use the same letter to respond to each notice if it fit the facts each time.

Mother also asserts we cannot be sure the Mohegan Indian Tribe received the second notice. We need not decide whether this argument is correct, because even if it were, there is no possibility of prejudice.

Mother notes that this tribe's response to the third notice stated: "No information regarding the mother was supplied." Since only the second notice gave information about mother, she infers the tribe must not have received that notice. But even if so, the error would necessarily be harmless because mother never claimed Mohican or Mohegan ancestry. If a parent has never claimed ancestral connections to a tribe, the failure to give notice to that tribe as to that parent cannot be prejudicial.

For all the above reasons, mother has failed to show any ICWA notice problem requiring reversal.

B. Information

Mother asserts that the 030 forms omitted essential information and contained contradictory or confusing information, thus making it impossible for the tribes to use those forms to do meaningful record searches. Again, mother fails to show any prejudicial error.

Mother claims information was "omitted" if it did not appear in the 030 form -- even if it appeared in the attached family tree. This claim patently lacks merit. Information given in the family tree, which was part of the notice sent, was not omitted from the notice. Mother cites no authority holding that the 030 form itself must contain all information provided to the tribes, even if that information includes more relatives going farther back than the form can easily accommodate. And we see no reason to assume that the tribes would overlook any information given them, wherever it appears in the notice.

Mother claims the information given was confused because the 030 form and the family tree labeled some of her relatives differently: the 030 form calls two of her relatives great-grandparents and another relative a great-great-grandparent, but the family tree calls these relatives respectively great-great-grandparents and a great-great-great-grandparent. Mother claims these errors were significant because all three of these relatives were said to have Blackfeet or Cherokee heritage. But mother does not explain, and we do not see, why such discrepancies as to such distant relatives would have made it impossible for the tribes to perform meaningful research. Whatever number of generations back these relatives may have been, the tribes had enough information to locate them if they appeared in the tribal records.

Finally, mother asserts that these alleged errors were prejudicial because some tribes' responses failed to mention one or another of these great-great-grandparents or great-great-great-grandparents, or the responses give their names differently from the way they appear on the ICWA notice forms. However, if these tribes could find no evidence of Indian ancestry among mother's more recent ancestors, there is no reasonable possibility that better information about relatives five or more generations in the past would have produced a different outcome. ICWA requires notice only as far back as the minors' great-grandparents. (§ 224.2, subd. (a)(5)(C).)

Although ICWA notice requirements are construed strictly (In re Robert A., supra, 147 Cal.App.4th at p. 989), this does not mean that notice must be perfect. Under the harmless error standard that applies to ICWA notice issues (Nicole K. v. Superior Court, supra, 146 Cal.App.4th at p. 784), mother has shown no grounds for reversal as to ICWA.

II. Adoptability

Mother contends insufficient evidence supports the juvenile court's finding that the minors were adoptable. We disagree.

"If the court determines, based on the assessment . . . and any other relevant evidence, by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption." (§ 366.26, subd. (c)(1).)

We review the juvenile court's finding that the child is likely to be adopted within a reasonable time under the substantial evidence standard, giving it the benefit of every reasonable inference and resolving any evidentiary conflicts in favor of affirming. (In re I.I. (2008) 168 Cal.App.4th 857, 869.) That is, we must determine whether the record contains substantial evidence from which the court could find clear and convincing evidence that the child was likely to be adopted within a reasonable time. (In re B.D. (2008) 159 Cal.App.4th 1218, 1232.)

Determination of whether a child is likely to be adopted focuses first upon the characteristics of the child; therefore, a finding of adoptability does not require that the child already be in a prospective adoptive home. (In re Sarah M. (1994) 22 Cal.App.4th 1642, 1649.) However, the fact that a prospective adoptive family has expressed interest in adopting the child is evidence that the child is likely to be adopted by that family or some other family in a reasonable time. (In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1651.)

At the selection and implementation hearing, mother's counsel did not argue against the Department's position that the minors were specifically adoptable. However, mother contends, and we agree, that this argument is properly before us because an insufficient evidence claim cannot be forfeited by failure to raise it below. (In re Brian P. (2002) 99 Cal.App.4th 616, 623; accord, In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.)

The juvenile court found as follows on adoptability:

"[T]hese are young children. All of them are under three. They are all currently in the same home, and they are in a home that is committed to adoption. Independent from whether they are specifically [adoptable] I find clear and convincing evidence that they are likely to be adopted.

"The fact that the current caregivers are committed to adoption and have a strong attachment to the children and they to the caretakers is evidence of the fact of their adoptability. And other than [D.G.]'s needs the children are -- I would say even as to [D.G.] he's meeting most developmental milestones. This is not a child who would be difficult to find someone to adopt any way [sic]. He's testing in the average range for cognitive and motor development. Language development, border line. Eligible for speech and language. He's got a 50 percent delay.

"The girls, the twins, are meeting their developmental milestones. They're in good health. . . . [D.G.] does very well in . . . his placement. And the girls are thriving in their placement. And they're all together as a set. These are children who are clearly and convincingly likely to be adopted."

Mother asserts the evidence the minors are likely to be adopted is insufficient because: (1) The minors were not generally adoptable because they were a sibling set and D.G. suffered from developmental delays; thus, as the selection and implementation report said, they were only specifically adoptable. (2) The Department produced no evidence that families other than the prospective adoptive parents would be willing to adopt children with characteristics similar to those of the minors. (3) The record does not show that the prospective adoptive parents have been fully informed about the problems the minors are likely to face due to the "multi-generational mental illness and substance abuse" that run in both parents' families. (4) Although it is not generally required that prospective adoptive parents be given such information prior to adoption, it should be done in a case such as this, where no other prospective adoptive families have come forward; because the prospective adoptive parents have not been so advised, we cannot know that they would still want to adopt after receiving such advisement. (AOB 45-48) We are not persuaded.

The law does not require the juvenile court to find that a dependent child is "generally adoptable" before terminating parental rights. (In re A.A. (2008) 167 Cal.App.4th 1292, 1313.) The fact that a prospective adoptive family, which already has custody of all three minors, wants to adopt them is evidence that they are 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.) Although the selection and implementation report called the minors specifically adoptable, it did not say that their characteristics would make them difficult to place with some other adoptive family. (See In re I.I., supra, 168 Cal.App.4th at pp. 869-870; In re Sarah M., supra, 22 Cal.App.4th at pp. 1649-1650.)

As mother admits, no authority supports her assertion that the juvenile court or the agency must inform prospective adoptive parents, prior to the section 366.26 hearing, of every potentially troubling issue in the biological parents' family histories. We reject this premise on that ground. (Kim v. Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) In any event, prospective adoptive parents are likely to realize that minors in the juvenile dependency system are available for adoption only because their biological parents' problems were grave enough to disable them as parents. Mother's speculation that the parents' mental health or substance abuse problems might be inheritable is utterly without foundation.

Mother asserts a "second area of concern": "whether [the prospective adoptive] family made the necessary degree of commitment to adopting all three children that would support the court's finding that adoption was likely." So far as we understand this argument, it appears to focus on the specific problems of the minors, D.G. in particular, and on the alleged lack of information about D.G.'s transition from his prior foster home to the prospective adoptive home and his relationship with the prospective adoptive parents. However, we need not discuss these evidentiary points, because the entire argument rests on a misunderstanding of the law.

As we have already indicated, the fact that the selection and implementation report called the minors "specifically adoptable" is not evidence that no family other than the prospective adoptive parents would be willing to adopt them. On the contrary, the fact that the prospective adoptive parents are willing to do so is substantial evidence that either they or some other family will adopt the minors within a reasonable time. (In re Lukas B., supra, 79 Cal.App.4th at p. 1154.) Thus, the juvenile court's finding of adoptability did not need to be supported by evidence that this particular family is committed to adopting all three minors.

For all the above reasons, mother's attack on the juvenile court's adoptability finding fails.

DISPOSITION

The orders terminating mother's parental rights and proceeding to adoption are affirmed.

We concur: ROBIE , J. BUTZ, J.


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