(Super. Ct. Nos. JD220279 & JD224617)
The opinion of the court was delivered by: Blease , J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
M.C. (mother) appeals from the juvenile court's orders terminating her parental rights as to minors A.C. and J.C. and ordering a permanent plan of adoption. Mother contends: (1) there is no substantial evidence the minors are adoptable, (2) the notice given under the Indian Child Welfare Act (ICWA; 25 U.S. § 1901 et seq.) was inadequate as to A.C. We shall reverse and remand for further proceedings under ICWA.
FACTUAL AND PROCEDURAL BACKGROUND
This case is now in its third round. The first dependency proceeding, which involved only A.C. (a female born in 2002), began in March 2004 and ended in March 2005 with A.C.'s return to mother and the termination of jurisdiction. The second proceeding, which included both A.C. and J.C. (a male born in 2004 after the first proceeding began), lasted from July 2006 to July 2008, when the juvenile court terminated jurisdiction with the minors in mother's custody. The third proceeding, in which the court made the orders mother now appeals from, began in December 2009. Because most of this history is irrelevant to the issues on appeal, we focus on the third proceeding. (The facts pertaining to ICWA are set out in part II of the Discussion.)
In the first two proceedings, Sacramento County Department of Health and Human Services (the Department) alleged that mother had abused methamphetamine and had failed to provide the minor or minors with safe, stable housing.
In the present proceeding, the Department's original Welfare and Institutions Code*fn1 section 300 petitions, filed December 22, 2009, alleged that mother had returned to substance abuse, had engaged in domestic violence with her current boyfriend, and had apparently attempted suicide. On March 29, 2010, the Department filed amended petitions additionally alleging that mother had gone through two prior dependency proceedings, had a history of drug-related convictions, and had tested positive for controlled substances since the original petitions were filed.
The Department recommended that the juvenile court deny reunification services to mother under section 361.5, subdivision (b)(13) ("§ 361.5(b)(13)") (extensive, abusive, and chronic use of drugs, resistance to court-ordered treatment during a three-year period immediately prior to filing of current petition, and failure or refusal to comply with a substance abuse treatment program at least twice before). The Department also recommended denying reunification services to A.C.'s alleged father, J.D., who was incarcerated and had not maintained contact with A.C. or financially provided for her.*fn2
At a contested jurisdiction/disposition hearing on May 6, 2010, the juvenile court sustained the amended petitions. The court ordered J.C. removed from parental custody, accepted presumed father S.J.'s waiver of reunification services, denied reunification services to mother as to J.C. under section 361.5(b)(13), and set a section 366.26 hearing for August 30, 2010. The court continued the disposition as to A.C. for ICWA notice because alleged father J.D. claimed Indian ancestry.*fn3
On June 10, 2010, at the disposition hearing for A.C., the juvenile court denied reunification services to J.D. under section 361.5, subdivision (a), and to mother under section 361.5(b)(13). The court set a section 366.26 hearing as to A.C. for October 4, 2010.
On June 14, 2010, the Department informed the juvenile court that the home of the paternal aunt and uncle was approved for placement, and the court ordered the minors placed there.
The section 366.26 report, filed October 1, 2010, stated that mother had recently missed several visits with the minors and had been hard to reach to arrange visitation.
The paternal aunt and uncle, who had two biological children of their own in the home, had ensured that the minors' needs were being met. They wished to adopt the minors, who wished to be adopted by them. The minors had a good relationship with each other, were on target developmentally, and were doing well in school. J.C. sometimes fought with the other children in the home over toys and got "overly excited" about things, while A.C. was "sensitive and clingy" and sometimes argued and competed with the other female child in the home; both would hug anyone they met, and needed to learn about personal boundaries. However, the paternal aunt and uncle felt the minors' behavior was normal and saw no grounds for concern. A.C. had weekly individual counseling to decrease her anxiety and "intrusive behaviors"; she enjoyed it and wanted to continue. J.C. did not receive counseling, but would be referred for counseling if it became necessary in the future.
The paternal aunt and uncle were aware of the commitment required by adoption. They had an extended support network of friends and family. They had recently been referred to begin the home study process.
Due to "their age [sic] and their mental/emotional needs," the minors were specifically adoptable by their present caretakers. It would be in the minors' best interests to terminate parental rights and allow permanency through adoption.
At the contested section 366.26 hearing on October 21, 2010, mother testified that her weekly visitation went well; the minors were sad at the end and asked when they would get to come home. She had missed a couple of visits in the past few months due to circumstances beyond her control. She did not think her parental rights should be terminated because she and the minors had a strong bond. The reports that accused her of failing to care for her children and abusing substances were false.
Mother's counsel opposed termination of parental rights, asserting that the beneficial parental relationship exception to adoption applied.
The juvenile court found that the minors were adoptable and mother's relationship with them was not sufficiently beneficial to outweigh the minors' need for permanence through adoption. The court therefore ordered the termination of mother's parental rights and the commitment of the ...