In re Ta.B. CA2/4 ( 2024 )

Filed 10/9/24 In re Ta.B. CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FOUR
In Ta.B., a Person Coming B332892
Under the Juvenile Court
Law. (Los Angeles County
Super. Ct. Nos.CK38987,
CK38987I)
LOS ANGELES COUNTY
DEPARTMENT OF
CHILDREN AND FAMILY
SERVICES,
Plaintiff and
Respondent,
v.
T.P.,
Defendant and
Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Jean M. Nelson, Judge. Affirmed.
Joseph T. Tavano, under appointment by the Court of
Appeal, for Defendant and Appellant.
Dawyn R. Harrison, County Counsel, Kim Nemoy,
Assistant County Counsel, Jessica S. Mitchell, Deputy County
Counsel, for Plaintiff and Respondent.
INTRODUCTION
In a juvenile court case that has been pending for more
than a decade, the trial court found the minor, Ta., adoptable and
terminated the parental rights of Tiffany P. (mother) under
Welfare and Institutions Code section 366.26.1 Mother appealed.
She asserts that the juvenile court erred in finding Ta. adoptable
because he has special needs. We find no error in this finding.
Mother also asks us to consider evidence that after the
section 366.26 hearing, Ta.’s planned adoption fell through. We
follow controlling Supreme Court authority and hold that we may
not rely upon evidence of events occurring after the termination
of mother’s parental rights to reverse the juvenile court’s ruling.
Finally, mother asserts that the inquiry under the Indian
Child Welfare Act (ICWA) was insufficient. We find no error and
affirm the juvenile court’s ruling.
FACTUAL AND PROCEDURAL BACKGROUND
The extensive facts of this case are summarized in several
previous decisions: In re T.P. (Feb. 6, 2020, B297465) [nonpub.
opn.], In re T.P. (Mar. 30, 2023, B313540) [nonpub opn.], and In
re T.P. (Dec. 1, 2023, No. B322047) [nonpub. opn.]. In the
sections below, we summarize the evidence relevant to mother’s
appeal, focusing on Ta.’s history. A separate section in the
1 All undesignated section references are to the Welfare and
Institutions Code.
2
Discussion portion below summarizes the evidence relating to
mother’s ICWA contentions.
A. 2012-2019
Ta., born in February 2010 and the youngest of mother’s
nine children, came to the attention of the Los Angeles County
Department of Children and Family Services (DCFS) in April
2012. Ta. and several siblings, including Te. (born in 2009) and
M. (born in 2006), were removed from mother’s care in 2012.
Mother pled no contest to certain allegations in the section 300
petition in June 2012, and mother’s reunification services were
terminated in 2014. The dependency proceeding has remained
active since then.
In 2013, Te. and Ta. were placed with caregivers who
became their legal guardians in 2016. Ta. had been diagnosed
with autism spectrum disorder and had behavioral problems,
including defiance, aggression, and tantrums that involved
dangerous behavior. For example, a status review report filed on
March 8, 2019 stated that Ta., then age nine, would try to take
off his seat belt and jump out of the car while it was moving.
On April 17, 2019, Te. and Ta.’s legal guardians informed
DCFS that they were no longer able to care for Ta. and they
wanted to dissolve the guardianship for him. The guardians said
that Ta.’s behavior was escalating, “[c]ulminating in several
incidents during the month of April 2019 when [Ta.] hit Mrs.
[Br., the legal guardian] in the eye, hit[,] bit and kicked his
therapist and broke a large glass frame off the wall which placed
the minors in Mrs. [Br.’s] daycare at risk of harm. Legal
Guardians stated that the final straw was when [Ta.] threw a
chair across the garage. Legal Guardians stated that they were
concerned with the increasing level of violence by [Ta.] and were
3
concerned that they were not getting adequate help in dealing
with his behaviors.” The juvenile court terminated legal
guardianship for Ta. on July 1, 2019.2
B. 2019-2021
The change began a long succession of placements for Ta.,
who was removed from various foster homes after violent
outbursts. One replacement occurred in August 2019, for
example, after Ta., age nine, had a tantrum in which he kicked
his school’s principal. Then, after being placed in the caregiver’s
car, Ta. “laid on his back in the backseat of the car and began
kicking the roof of the car and windows.” The caregiver asked
that Ta. be replaced.
A caregiver in October 2019 noted that the difficult
behaviors of Ta. included “being physically assaultive to the
caregiver as well as to the others in the home, destroying
property, kicking, spitting, kicking holes in the screen door,
attempting to break the front picture window in the home with
the nozzle of the water hose, destroying items in the home,
yelling[,] screaming, using profanity, running away from the
caregiver in public settings, hanging his body out of the car while
the car was in motion, destroying property in Target Department
Store, defiance, refusing to get dressed for school, refusing to
either get in or get out of the caregivers [sic] car, refusing to go to
class at school, running around the school hiding from the school
staff, throwing chairs in the classroom and refusing redirection,
hitting, kicking and biting the school principal. During his stay
in the caregiver’s home, the child also made false allegations of
2 The guardians later also dissolved their guardianship over
Te.
4
abuse.” Twice in late 2019, Ta. was admitted to the hospital on
section 5585 holds.3
Another caregiver, with whom Ta. stayed for 24 days from
December 2019 to January 2020, had to request help from law
enforcement and the psychiatric emergency team. In addition to
breaking things, pulling things out of the kitchen cabinets, and
threatening to cut the caregiver with broken glass, Ta. “was
playing with the burners on the kitchen stove turning the fire off
and on, and he was also using profanity, telling her to ‘suck his
dick.’”
A status review report filed on January 17, 2020 stated
that Ta. had been in 12 placements in total. One caregiver in
2020 noted that Ta. “demonstrated aggressive behavioral
outburst[s] at home and school,” including incidents in which Ta.
“would [throw] objects and hit others in the home when he
became upset.” Ta. had been prescribed various psychotropic
medications and was receiving therapy. Ta. was placed on a
waiting list for an intensive services foster care (ISFC)
placement. At the January 21, 2020 permanency planning
review hearing and at similar hearings thereafter, the court
found that “[t]he [p]ermanent plan of adoption as a specific goal
is appropriate and is ordered as the permanent plan.”
A section 366.26 hearing report filed on February 19, 2021
stated that Ta. had been in 15 placements. At this time Ta. was
with the C. family, who was interested in adopting mother’s three
3 The Children's Civil Commitment and Mental Health
Treatment Act of 1988 (§ 5585 et seq.) provides that a minor who,
“as a result of mental disorder, is a danger to others, or to himself
or herself,” may be taken into temporary custody for evaluation
and treatment. (§ 5585.50, subd. (a).)
5
youngest sons, M., Te., and Ta. In February 2021, the juvenile
court designated Mrs. C. the holder of Ta.’s educational and
developmental rights. Ta. continued to have outbursts in which
he “would throw objects, destroy furniture, break doors, and he
hits others in the home when upset.” In July 2021, the C. family
asked that Ta. be replaced after an incident in which Ta. “became
physically aggressive toward Mrs. [C.], sibling [M.], and the
family’s dog. The front door was broken and wood floor was
damaged. Mrs. [C.] does not feel that she can safely manage
[Ta.’s] behavioral outbursts combined with his significant special
needs.” DCFS requested additional time to “to address the
impediments to moving forward with a permanent plan.”
A status review report filed on October 6, 2021 stated that
Ta. was with a new caregiver, Ms. T., and he remained on the
waiting list for an ISFC placement. The report stated, “Since
being placed with Ms. [T.], [Ta.] has been expelled from one
childcare facility for spraying the staff and children with bleach
and refusing to put down scissors. The daycare staff and
IFCCS[4] team were unable to convince [Ta.] to put the scissors
down and law enforcement was called.” Ta. was hospitalized for
an assessment, but was discharged because he did not present a
danger to himself or others.
An addendum report filed on October 12, 2021 stated that
Ta. remained on a waiting list for an ISFC placement. He
struggled with basic daily hygiene such as showering, brushing
his teeth, and cleaning his ears. On October 15, 2021, Ms. T.,
said she wanted to adopt Ta. On November 2, 2021, the court set
adoption as the permanent plan for Ta., and designated Ms. T.
the holder of Ta.’s educational and developmental rights.
4 Intensive Field Capable Clinical Services.
6
However, Ms. T. gave notice to have Ta. removed, and on
December 22, 2021, Ta. was placed in an ISFC home. The court
designated the ISFC caregiver the holders of Ta.’s developmental
and educational rights.
C. 2022
In January 2022, upon mother’s request, the juvenile court
appointed a court-appointed special advocate (CASA) for Ta. An
addendum report filed April 5, 2022 stated that the ISFC
caregiver’s goal was “to provide [Ta.] with love, care and support,
so that he can stabilize and move on to a lower level of care,
ideally a permanent home. She is not interested in providing
permanency at this time, but is willing to support adoption
recruitment efforts.” A status review report filed April 13, 2022
stated that Ta. continued to struggle in school with “completing
school work, staying focused, and running out of the classroom
and school campus,” and he had been assigned a 1:1 aide at
school. At home with his caregivers, Ta. continued to struggle
with “self-regulation. transitioning from one activity to another[,
h]yperactivity, sensory issues, and basic hygiene.” DCFS stated
that there was no caregiver for Ta. willing to provide
permanency, but DCFS was looking for a match. DCFS stated
that it “believes [Ta.] is in need of a permanent home with
caregivers who specialize in children with special needs.”
At a section 366.26 hearing on May 3, 2022, the court
ordered no contact between mother and Ta. after mother directly
contacted the children in violation of the court’s order that
mother’s contact be monitored. Mother appealed this order and a
November 2022 ruling in which the court denied mother’s request
to lift the no-contact order. We affirmed the rulings in In re T.P.,
supra, Dec. 1, 2023, No. B322047. We found that the no-contact
7
orders were warranted because mother often attempted to
sabotage the children’s stability and placements. (Ibid.) The
section 366.26 hearing was continued.
A last-minute information filed on July 1, 2022 reported,
“[Ta.] has significantly improved in behavior, so well that he is
attending summer school and Karate Lessons. We may have a
possible adoption match for [Ta.].” The addendum report stated
that “[Ta.] has improved in all areas of behavior and functioning.
His self-help skills, ability to follow a daily routine and ability to
self-regulate when feeling emotionally overwhelmed or when
faced with a limit set by an adult have all improved significantly.
. . . [Ta.] also strongly expressed that he is happy in his
placement, but still hoping to find an adoptive match family
soon.”
A CASA report filed on July 12, 2022 stated that Ta.
“recently completed 6th grade and is in a special day program for
core classes and general education physical education. An
Individual Education Plan (IEP) meeting was held June 1, 2022.
The educational team reviewed the extensive testing they
performed and provided updated goals for [Ta.]. At the
conclusion of the 2021/2022 school year, [Ta.] had improved in all
classes with passing grades. Per the current IEP, [Ta.] qualifies
for one-on-one support throughout the school day. [Ta.] is
attending summer school as per his previous IEP. The school
district is providing one-on-one support during the summer
school program. Per educational testing, [Ta.] meets criteria for
special education with a diagnosis of Specific Learning Disability
and Other Health Impairment. He does not meet criteria for
Autism Spectrum Disorder (ASD). Educational team reports that
[Ta.] continues to elope throughout the day, however this has
8
decreased with the assistance of his one-on-one support. The
Educational team will also provide an occupational therapy
assessment once school resumes in the fall.” Ta. was also “a
client of Harbor Regional Center under the diagnosis of Attention
Deficit and Hyperactivity Disorder (ADHD) and Autism
Spectrum Disorder (ASD).” Ta.’s mental health team was
“working with [Ta.] on improving social skills (setting
boundaries, reducing impulsive behaviors, increasing expressive
thoughts/feeling and self-awareness). He is making slow gains in
all areas.”
A notice of replacement report filed on October 4, 2022
stated that Ta. had “graduated” from his ISFC placement, and
had been placed with a potential adoptive parent, Ms. F.O.—his
18th placement—after a period of visitation “to ease the
transition.” A status review report dated October 5, 2022 stated
that “[d]uring this period of supervision,” Ta.’s “mental health
was stabilized,” and he “was able to graduate from ISFC program
to a lower level of care, . . . attend and complete summer school,
participate in extracurricular activities, and had no major
behavioral crisis in placement or school which warranted
hospitalization. The Department strongly believes [Ta.] was able
to accomplish all of the above as a result of a stabilized placement
which allowed for supportive services to be put in place. In
addition, [Ta.] was not triggered by contact with mother . . . .”
DCFS stated that Ta. needed to be placed with Ms. F.O. for six
consecutive months before adoption could move forward.
The status review report also stated that Ta., now age 12
and in seventh grade, had an IEP and a one-to-one aide. “The
school staff continues to report that [Ta.] will run out of class
when he is assigned [a] task he does not want to complete.
9
However, the school is able to de-escalate [Ta.] using the school
staff and no longer reaches out to caregiver. At this time, [Ta.] is
passing all subjects and continues to thrive academically.”
A notice of replacement report filed on October 20, 2022
stated that Ta. had been removed from Ms. F.O.’s home and
placed with Mr. M.—his 19th placement. An addendum report
filed October 21, 2022 stated that after an incident in which Ta.
refused to leave school and go home with her, Ms. F.O. wanted
Ta. placed in a home where he would be “happy.” Mr. M. was a
potential adoptive parent; DCFS stated, “Once [Ta.] has been in
the home for approximately 30 days, [the social worker] will
assess if the placement is stable and verify whether [Ta.] and Mr.
M. wish to move forward with a plan of adoption.”
D. 2023: Placement with the B. family
A notice of replacement report filed on January 23, 2023
stated that Ta. had been moved to the B. family’s home, where
his older brothers, M. and Te., also lived. The notice stated that
Ta. was moved “after the child expressed wanting to reside with
siblings.” A CASA report filed on January 30, 2023 stated that
“regional center and wraparound services [were] in the process of
being transferred and implemented” in the area local to the B.
family. Ta. had been hospitalized once recently due to his
behavior. Ta. reported that he was happy to be living with his
brothers. On January 31, 2023, the juvenile court designated the
B.s as the holder of Ta.’s developmental and educational rights
along with the CASA.
An April 5, 2023 concurrent planning assessment update
stated that the B. family was ready to move forward with
adopting Ta., and Ta. wanted to be adopted by them. A status
review report filed on April 5, 2023 stated that Ta. “must reside
10
with the caregivers for 6 consecutive months and Parental Rights
must be terminated before moving forward with adoption.” Ta.
had a one-to-one aide in school, but he continued to struggle with
“getting to class on time, running out of class, and taking
extensive bathroom breaks. [Ta.] struggles with extensive
bathroom breaks at home, school, and in the community and [the
caregivers] believe he is masturbating.” Ta. struggled to brush
his teeth daily, and “struggle[d] with compulsive over eating,
being untruthful, hygiene, completing tasks, and compulsive
masturbation at home, school, and community settings,” such
that he would lock himself in a bathroom for 30 minutes to an
hour at a time.
A CASA report filed on April 25, 2023 stated that Ta.
continued having one-to-one individual support at school. His
planned regional center services included “respite care for
caregivers, CBEM (Creating Behavioral+Education Momentum),
. . . Sexuality Training,” and applied behavior analysis (ABA)
therapy, but there were wait lists for some of these services. His
medications and dosages were being monitored and adjusted. Ta.
was happy in the B.s’ home and wanted to be adopted by them.
A last-minute information filed on July 13, 2023 stated that
Ta. was receiving regional care services, including CBEM
meetings “to address sexual behavior, hygiene, and aggressive
behavior.” The B.s reported that Ta.’s behavioral outbursts had
increased, “triggered by food, video games, and when natural
consequences are implemented.” The CBEM team was called for
crisis support on May 31 and June 16, 2023. The B.s were
“patient and understanding while working with [Ta.]. In addition,
[Ta.] has adapted well to living with the caregivers and continues
to express feeling a part of the family. During monthly home
11
calls, [Ta.] expresses feeling respected, loved, safe, happy, and
wanting to be adopted by the caregivers.” The B.s also wanted to
move forward with adoption.
A CASA report filed on July 20, 2023 stated that Ta. had
completed seventh grade. Ta. was receiving counseling services
twice per week, and his psychiatrist adjusted the dosages and
timing of some of Ta.’s medications “to curb the more difficult
behaviors” Ta. was exhibiting in the afternoons. The B.s noted
that Ta.’s “behavior at home has become increasingly more
difficult.” His “behavior is the most difficult at bedtime and he
will become defiant and disrespectful. [Ta.] is triggered by many
things, however mostly when not getting to have screen time,
getting his Xbox taken away, brushing his teeth, showering, and
bedtime transitions.” Ta. had a psychiatric hospitalization in
July 2023. Ta. continued to report that he wanted to be adopted
by the B.s, and the B.s wanted to adopt Ta.
A status review report filed on October 2, 2023 reiterated
Ta.’s behaviors and services. It stated, “[Ta.] continues to express
frustration with having to participate in so many services, which
has led to several crisis [sic]. Furthermore, the caregivers
express frustration and feeling unsupported by service providers.
The caregivers reported on several occasions CBEN [sic],
Wraparound, and Community Integration Service providers were
unable to deescalate, stating they could not assist during violent
physical outbursts and encouraged caregivers to contact law
enforcement. Additionally, CBEN [sic] and Community
Integration Services providers informed caregivers being unable
to move forward with services if violent outbursts continued. On
one occasion, [Ta.] slammed a door on caregiver Mrs. B’s hand,
which resulted in a severe injury to caregiver’s hand. Mrs. B.
12
reported having to miss several days of work due to behavioral
crisis were [sic] two caregivers were needed because of the lack of
support from service providers.”
The status review report continued, “On another occasion,
DCFS was contacted by Regional Center after Community
Integration providers reported [Ta.] struggle[d] to get in
provider’s vehicle, tried to jump out of the moving vehicle,
struggled to keep the seat belt on, kept kicking driver’s seat, and
tried to break the car window.” “Additionally, the caregivers
reported [Ta.] continues to struggle with masturbating during
inappropriate times and locations. Therefore, [all] electronics
and television has to be monitored by the caregivers. At this time,
[Ta.] continues to struggle with discussing the matter as it
continues to lead to a behavioral outburst which can quickly
escalate.”
Ta. had a psychiatric hospitalization on July 18, 2023, after
an incident in which he “began to throw furniture, grabbed
caregivers, acting as if he was going to hit, verbally assault[ed]
caregivers and service providers, blamed caregivers for his
behavior and aggression, and crossed the caregiver’s safety
boundaries. The caregivers were instructed by CBEN [sic]
service provider to call law enforcement. The caregivers, CBEN
[sic] service providers, and Law Enforcement were unable to de-
escalate [Ta.] and he was tak[en] to Exodus Recovery at MLK by
Law Enforcement where he was placed on s psychiatric hold as a
danger to others.” Ta.’s medications were adjusted after the
incident, and his behaviors improved.
Ta. was in eighth grade. He was able to get ready for
school on time, and was “able to transition to 6 different classes
with the help of his 1:1 aid.” The status review report stated,
13
“[Te.] and [Ta.] are adjusting well and are closer to permanency
because of the No Contact Order with mother [ ], as mother’s
interactions with caregivers and minors have resulted in frequent
placement changes for the minors. The minors have been in
foster care for over 11 years, as a result of the mother’s
interference, which has prevented permanency for the minors.
Additionally, the minors are placed together is a safe, stable, and
loving home and are close to obtaining permanency.” DCFS
requested that the court order “permanency in the form of
adoption” for Ta.
A CASA report filed on October 16, 2023 stated that Ta.
continued doing well in school. The B.s felt that Ta.’s
medications and services were supporting him well, although
“there [were] occasions when [Ta.’s] behaviors interfere with his
progress,” and there were times when Ta. “knows what he should
do . . . but cannot get himself to actually do it.” An “update on
adoptive planning” report filed on October 25, 2023 stated that
the B.s were “fully committed to adopting” Ta., and “there are no
impediments to the adoption.” DCFS recommended that
mother’s parental rights be terminated.
E. Section 366.26 hearing
At the section 366.26 hearing on October 26, 2023, mother’s
counsel stated that mother was “available by phone but does not
wish to appear for this hearing.” Ta.’s counsel argued that Ta.
was adoptable and that he wanted to be adopted by the B.s. Ta.’s
CASA agreed that “the placement he is in right now is the best
for him.” She noted that Ta. “is getting better with the
medication he is on,” and added, “I have seen tremendous growth
in the two years I have been his CASA.”
14
Mother, through her counsel, objected to the termination of
parental rights based on the parental relationship exception. (§
366.26, subd. (c)(1)(B)(i).) The court noted that mother “has
demonstrated a practice of trying to undermine the placements”
of the children and “trying to communicate with her children in
unmonitored ways,” and over the course of the case mother
showed that “she does not have an ability to control her own
behavior.” The juvenile court found that the parental
relationship exception did not apply, stating that the termination
of the parental relationship “would not be a detriment at all” to
Ta., because mother’s relationship with him was “a negative
influence in his life.”
The court stated that the B.s “are doing a wonderful job
with these boys.” The court found by clear and convincing
evidence that Ta. was adoptable, and that it was likely Ta. would
be adopted. The court terminated parental rights. The court
deemed the B.s prospective adoptive parents, and denied
mother’s renewed request for visitation. Mother timely appealed
the juvenile court’s order.
DISCUSSION
A. Adoptability
Mother contends the juvenile court erred by finding that
Ta. was likely to be adopted. At a section 366.26 hearing, “[i]f the
court determines . . . 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. The fact
that the child is not yet placed in a preadoptive home nor with a
relative or foster family who is prepared to adopt the child, shall
not constitute a basis for the court to conclude that it is not likely
the child will be adopted.” (§ 366.26, subd. (c)(1).) Thus, a
15
“juvenile court may terminate parental rights only if it
determines by clear and convincing evidence that it is likely the
child will be adopted within a reasonable time. [Citation.] The
‘likely to be adopted’ standard is a low threshold.” (In re J.W.
(2018) 26 Cal.App.5th 263, 266-267.)
“On review, ‘“we determine whether the record contains
substantial evidence from which a reasonable trier of fact could
find clear and convincing evidence that [the child] was likely to
be adopted within a reasonable time. [Citations.]’ [Citations.]
We give the court’s finding of adoptability the benefit of every
reasonable inference and resolve any evidentiary conflicts in
favor of affirming.’” (In re J.W., supra, 26 Cal.App.5th at p. 267;
see also Guardianship 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 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”].)
1. Adoptability finding at the section 366.26 hearing
Mother contends the juvenile court’s order should be
reversed because Ta.’s violent behaviors and emotional issues
“belie a finding by clear and convincing evidence that he is likely
to be adopted.” She argues that the juvenile court erred when it
“terminated parental rights based solely on [the B.s’] desire to
adopt Ta. In light of the multiple placements necessitated by
Ta.’s severe emotional and violent problems, and more recently,
disturbing sexualized behaviors, there was no clear and
convincing evidence Ta. was likely to be adopted within a
16
reasonable time.” DCFS asserts that the juvenile court’s ruling is
supported by substantial evidence.
In general, special needs do not render a child unadoptable.
(See, e.g., In re J.W., supra, 26 Cal.App.5th at p. 265 [“Children
with special needs . . . may nonetheless be adoptable. Disability is
not a bar to adoptability.”]; In re K.B. (2009) 173 Cal.App.4th
1275, 1293 [rejecting the contention that “a special-needs child
can be deemed adoptable only if an ‘approved’ prospective
adoptive parent exists”].) However, a child’s special needs may
affect how a court assesses adoptability.
“[A]doptability generally falls into two categories: General
adoptability, and specific adoptability. . . . A child who is happy,
healthy and young, with no discernable developmental problems,
can be found to be generally adoptable even if no prospective
adoptive family is ‘“waiting in the wings,”’ ready to adopt.” (In re
B.D. (2019) 35 Cal.App.5th 803, 817 (B.D.).) Specific adoptability
may be found where a “minor who ordinarily might be considered
unadoptable due to age, poor physical health, physical disability,
or emotional instability is nonetheless likely to be adopted
because a prospective adoptive family has been identified as
willing to adopt the child.” (In re Sarah M. (1994) 22 Cal.App.4th
1642, 1650.) “For a specifically adoptable child,” the juvenile
court “must determine whether there are any legal impediments
to adoption and whether there is a prospective adoptive parent
who is able to meet the needs of the child.” (B.D., supra, 35
Cal.App.5th at p. 817.) A juvenile court is “not required to find
the [child] ‘generally’ or ‘specifically’ adoptable,” rather, the court
is “required only to find by clear and convincing evidence that the
[child is] ‘likely’ to be adopted within a reasonable time.” (In re
Mary C. (2020) 48 Cal.App.5th 793, 802.)
17
There is no question that Ta. is a high-needs child. At the
time of the section 366.26 hearing, 11 years into the active
juvenile court case, Ta. was 13 years old and had been in foster
care for most of his life. He had been diagnosed with ASD and
ADHD, he was taking psychotropic medications, and was in
intensive therapy. Ta.’s violent outbursts sometimes put himself
and others at risk. Mother argues that because of Ta.’s special
needs, “the decision to order adoption was based not on evidence
that Ta. was adoptable, but that these particular caregivers
wanted to adopt Ta.” Mother asserts, “should the adoption fall
through . . . there were no other identified adoptive families
willing to adopt this child.”
The juvenile court’s focus on whether the B. family could
meet Ta.’s needs was correct. In general, “the suitability of the
prospective adoptive family does not constitute a legal
impediment to adoption and is irrelevant to the issue of whether
a child is likely to be adopted.” (In re Carl R. (2005) 128
Cal.App.4th 1051, 1061.) However, “[w]hen a child is deemed
adoptable only because a particular care taker 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 the he or she is able to
meet the needs of the child.” (In re Helen W. (2007) 150
Cal.App.4th 71, 80.) In assessing the adoptability of a high-needs
child, “the assessment of the adoptability of [the] child must
necessarily include some consideration of whether the prospective
adoptive parents can meet that child’s needs, since if the
prospective adoptive parents cannot meet the child’s needs, the
child cannot properly be found to be adoptable.” (In re Carl R.,
supra, 128 Cal.App.4th at p. 1062.)
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Here, the juvenile court correctly made that determination.
The court considered how Ta. was doing in the B.s’ care and
whether the B.s were able to meet Ta.’s special needs. Mother
does not argue otherwise. Mother also does not assert that there
was any legal impediment to adoption. We therefore find no
error in the juvenile court’s finding that as of the section 366.26
hearing on October 26, 2023, Ta. was specifically adoptable.
2. Consideration of post-hearing evidence
In this court, mother filed a motion under Code of Civil
Procedure section 909 asking us to consider evidence post-dating
the section 366.26 hearing. The evidence consisted of three
exhibits, as follows.
Exhibit 1, a last-minute information filed on November 15,
2023 stated that the B.s reported that Ta.’s “behaviors have
reverted back to daily behavioral outbursts such [as] throwing
objects, verbally assaulting caregivers and providers, trashing
caregivers[’] home, ditching classes, [being] verbally aggressive
towards his 1:1 aid at school,” and being verbally aggressive
toward other service providers. The B.s were “frustrated” with
failures of various support programs, such as a lack of any crisis
response after 5:00 p.m. and a respite caregiver who left Ta. and
Te. home alone, resulting in an altercation between the brothers
during which police were called. The B.s were “concerned with
minor [Te.] not wanting to be in the same room as [Ta.] and
minor [M.] walking on egg shells [sic] to keep [Ta.] happy.”
Exhibit 2, a notice of replacement report filed on January
22, 2024, stated that Ta. had been hospitalized on December 30,
2023, and the B.s asked that Ta. be placed in a new home
thereafter. Ta. was then placed with a new caregiver.
19
Exhibit 3, a notice of replacement report filed on February
8, 2024, stated that Ta. was placed in a new foster home—his
22nd placement—after the previous caregiver requested that Ta.
be removed from his care. The report stated that Ta. “destroyed
the home, hit a female adult in the home, and refused to go to
school which resulted in Law Enforcement being called to the
home.”
Mother asserts in her motion, “Due to the drastically
changed circumstances for Ta. since the October [26], 2023,
termination of parental rights,” this court should consider the
post-hearing evidence. DCFS opposed mother’s motion.
In general, “‘an appeal reviews the correctness of a
judgment as of the time of its rendition, upon a record of matters
which were before the trial court for its consideration.’” (In re
Zeth S. (2003) 31 Cal.4th 396, 405 (Zeth S.).) However, Code of
Civil Procedure section 909 allows a reviewing court to “make
factual determinations contrary to or in addition to those made
by the trial court,” and, “for the purpose of making the factual
determinations,” the reviewing court may “take additional
evidence of or concerning facts occurring at any time prior to the
decision of the appeal.”
Our Supreme Court has cautioned against the
consideration of postjudgment evidence in appeals following the
termination of parental rights. In Zeth S., the Supreme Court
addressed this question: “in a juvenile dependency appeal from
an order terminating parental rights, may the Court of Appeal
receive and consider postjudgment evidence that was never
before the juvenile court, and rely on such evidence outside the
record on appeal to reverse the judgment? The general answer is
20
no, although in the rare and compelling case an exception may be
warranted.” (Zeth S., supra, 31 Cal.4th at pp. 399-400.)
The Zeth S. court cautioned that the consideration of
postjudgment evidence “effectively substitutes the reviewing
court’s own post hoc determination of whether termination of
parental rights remains in the minor’s best interests[ ] for the
legislatively mandated determination that follows when the
comprehensive juvenile dependency statutory scheme is dutifully
adhered to in the trial court.” (Zeth S., supra, 31 Cal.4th at pp.
409-410.) The court stated that if “postjudgment evidence of
circumstances involving the minor’s present out-of-home custody
status during the pendency of the appeal [was] routinely and
liberally considered,” appeals would devolve into hearings in
which “the reviewing court[ ] would be utilized to determine
whether the juvenile court’s judgment should be reversed and the
case remanded for a new 366.26 hearing, even where the juvenile
court itself has committed no legal error in terminating parental
rights on the record evidence before it.” (Id. at p. 412.) The court
rejected such an approach: “[C]onsideration of postjudgment
evidence of changed circumstances in an appeal of an order
terminating parental rights . . . would violate both the generally
applicable rules of appellate procedure, and the express
provisions of section 366.26 which strictly circumscribe the
timing and scope of review of termination orders, for the very
purpose of expediting the proceedings and promoting the finality
of the juvenile court's orders and judgment.” (Id. at p. 413.)
The Supreme Court has since reiterated this view. In In re
Josiah Z. (2005) 36 Cal.4th 664, 676, for example, it noted that
Zeth S. held that appellate courts should not use “new evidence
outside the record to second-guess the trial court’s resolution of
21
issues properly committed to it by the statutory scheme.” In In re
Kenneth D. (2024) 16 Cal. 5th 1087, the Supreme Court
reaffirmed the holding of Zeth S. in finding that postjudgment
ICWA evidence should not be considered by appellate courts.
However, Zeth S. stated in a footnote that one case, In re
Elise K. (1982) 33 Cal.3d 138 (Elise K.), “serves as precedent for
the proposition that where postjudgment evidence stands to
completely undermine the legal underpinnings of the juvenile
court’s judgment under review, and all parties recognize as much
and express a willingness to stipulate to reversal of the juvenile
court’s judgment, an appellate court acts within its discretion in
accepting such a stipulation and reversing the judgment.” (Zeth
S., supra, 31 Cal.4th at p. 414, fn. 11.) Elise K. has a very short
majority opinion, stating only that the court found it appropriate
to accept the parties’ stipulation “that the judgment herein be
reversed and the cause remanded to the trial court for further
proceedings ‘in light of subsequent material evidence concerning
the adoptability of the subject minor.’” (Elise K., supra, 33 Cal.3d
at p. 139.)
Justice Bird’s concurrence in Elise K. includes the details of
the case. The child, Elise, was removed from her mother’s care at
the age of five. The mother, who lived a very erratic and unstable
life, sporadically attempted to reunify with Elise over the next
several years. When Elise was 10, for example, the Department
noted that she “was in need of a stable, permanent family with
whom she could live,” but due to her ongoing relationship with
her mother, “it would be detrimental to Elise to completely sever
her ties with her mother.” (Elise K., supra, 33 Cal.3d at p. 144.)
The trial court nevertheless found Elise adoptable and
terminated the mother’s parental rights.
22
Years later, however, as the mother’s appeal was pending,
Elise’s adoption fell through. The concurrence states, “At oral
argument, both sides urged the Court of Appeal to consider the
post-judgment situation. Apparently, the Department told the
court that Elise’s age—then nearly 14 years old—made her no
longer adoptable. Thus, Elise was without a family or the
prospect of a family.” (Elise K., supra, 33 Cal.3d at p. 145.)
Justice Bird discussed the termination of parental rights and
adoptability under the statutes effective at the time, and
continued, “Elise has had a long and caring—if incomplete—
relationship with her natural mother. This is a relationship
which both parties wish to continue. . . . Under these
circumstances, had the trial court been able to foresee that Elise
would not be adopted, it surely would not, and could not, have
ordered appellant’s parental rights terminated. . . . Except where
the natural parent abuses the child—a situation not presented by
this appeal—an inadequate parent would appear to be preferable
to no parent at all and would be more consistent with the overall
legislative scheme.” (Id. at pp. 148-149.) The concurrence stated
that the postjudgment evidence should be considered under the
circumstances: “The state took the drastic step of terminating
Elise’s relationship with her natural mother. This step was
considered to be in Elise's best interest at that time. It was based
in part on the reasonable premise that Elise could and would be
provided with a more satisfactory parental relationship through
adoption. For reasons unforeseeable at the time, the premise has
turned out to be erroneous. Elise has not been adopted and is no
longer adoptable.[ ] The basis for the section 232 order has been
undermined.” (Id. at pp. 150-151.)
23
Mother urges us to consider the postjudgment evidence
under the reasoning of Elise K. and B.D., supra, 35 Cal.App.5th
803. In B.D., after parental rights were terminated, it came to
light that the child had been abused in the foster home, the foster
father’s parental rights to his biological children had been
terminated, and the foster father had an extensive criminal
history. (B.D., supra, 35 Cal.App.5th at pp 810-812.) In the
Court of Appeal, the parties—including the child—“stipulated to
reversal, jointly recognizing that, following the termination of
parental rights, ‘subsequent events [have] undermined the
juvenile court’s finding that [Minor] was likely to be adopted.’”
(B.D., supra, 35 Cal.App.5th at p. 809.) The court found that the
case was “one of those ‘rare and compelling case[s]’ . . . ‘where
postjudgment evidence stands to completely undermine the legal
underpinnings of the juvenile court’s judgment under review, and
all parties recognize as much[.]’” (Id. at p. 818, quoting Zeth S.,
supra, 31 Cal.4th at p. 399, 413, fn. 11.)
This case is not like Elise K. or B.D. First, DCFS has
opposed mother’s motion to consider postjudgment evidence; this
is not a situation in which the parties have stipulated that the
postjudgment evidence should be considered. (See Zeth S., supra,
31 Cal.4th at p. 414 [consideration of postjudgment evidence may
be warranted when “all parties . . . express a willingness to
stipulate to reversal of the juvenile court’s judgment”].)
Second, this is not a case like Elise K., in which the mother
struggled with stability, but maintained a positive ongoing
relationship with the child. Justice Bird noted in her concurrence
in Elise K. that “[t]he testimony of several social workers at the
hearings confirmed the ‘affection,’ the ‘strong relationship, the
ties,’ and the ‘warmth’ existing between mother and daughter.”
24
(Elise K., supra, 33 Cal.3d at p. 144.) Here, by contrast, when
mother asserted the parental relationship exception under
section 366.26, subdivision (c)(1)(B)(i), the juvenile court rejected
her claim, noting that mother’s relationship with Ta. was
detrimental to him. Mother does not challenge that finding.
Third, the reasoning of B.D. also does not apply here. In
B.D., the court relied on In re David H. (1995) 33 Cal.App.4th 368(David H.), a case in which parental rights were terminated;
DCFS construed the child’s prospective adoptive parents as
providing the child a happy, stable home. In reality, the adoptive
couple was divorcing, they had declared bankruptcy, and the
father was alleged to be an abusive alcoholic. (David H., supra,
33 Cal.App.4th at p. 376.) The child’s biological parents
challenged the termination of parental rights, arguing that the
ruling was obtained by fraud. (Ibid.) In rejecting this challenge,
the Court of Appeal stated, “Parental rights are terminated
because (1) the parents have been found so derelict in their duties
to their children, or so unable to fulfill those duties, that it would
be harmful to return the child to their custody (§ 366.21(e);
§ 366.22(a)), and (2) the child has a chance of finding a caring,
stable and nurturing home elsewhere (§ 366.26(c).) In David’s
case, he was freed from inadequate parents, but his prospective
adoptive home proved to be a mirage and a hoax. It would be a
tragic anomaly if the derelict parents could now further impede
David’s chances of finding a secure home by forcing relitigation of
the permanent plan on the ground of injuries they feel were done
to them. [¶] As a general matter, it would be inimical to the
policies underlying the juvenile court law to allow parents to
raise a collateral challenge to an order terminating parental
rights on the ground that the child's posttermination placement
25
did not meet with the parents’ expectations. Such relief is not
available, whether the parents’ expectations were not met
because of an uncontrollable turn of fate, [citation] or for any
other reason. . . .” (Id. at pp. 384-385.)
The B.D. court quoted this portion of the David H. opinion,
and stated that “[w]ith respect to Parents, the analysis in David
H. is apt.” (B.D., supra, 35 Cal.App.5th at p. 826.) The B.D. court
held that the child himself, however, had a “fundamental liberty
interest in accurate determination of the issue of adoptability on
a full and complete record,” and considered the postjudgment
evidence on that basis. (Ibid.)
Here, Ta. has not appealed. Mother proposes that we
consider the postjudgment evidence as a means of reinstating her
parental rights; otherwise, she argues, Ta. will be a “legal
orphan.” However, even before mother’s parental rights were
terminated, Ta. was essentially a legal orphan. Ta. has not been
in mother’s custody since he was two years old. Mother has not
held Ta.’s educational or developmental rights for more than a
decade. The juvenile court has ordered, and we have affirmed, an
ongoing no-contact order because mother’s interactions with her
children were detrimental to their safety and security. For years,
mother has not asserted any arguments supporting Ta. or his
well-being; instead, she asserts only her own interests, such as
repeatedly asking the juvenile court to lift the no-contact order
despite clear findings that mother’s contact was detrimental to
the children. Even now, on appeal, mother does not assert that
reversal of the juvenile court’s order would benefit Ta. in any
way.
Fourth, Code of Civil Procedure section 909 allows an
appellate court to “make factual determinations” on appeal “to
26
the end [that] causes may be finally disposed of by a single appeal
and without further proceedings.” Here, the additional evidence
does not allow for judicial factfinding about Ta.’s current best
interests. The only information available is that Ta.’s adoption
with the B.s fell through, and he was replaced twice. We have no
information about Ta.’s current circumstances, whether he is
thriving in his new placement, or whether there is another
caregiver currently willing to adopt Ta. On so thin a record, it
would be inappropriate to substitute our judgment about Ta.’s
adoptability for that of the juvenile court. Moreover, mother
presents the evidence for the purpose of reversal and remand for
further proceedings in the juvenile court, which contradicts Code
of Civil Procedure section 909’s stated purpose to minimize
“further proceedings.”
Thus, we find that this is not a “rare and compelling case”
(Zeth S., supra, 31 Cal.4th at p. 399) in which postjudgment
evidence should be relied upon to reverse the juvenile court’s
finding under section 366.26.
B. ICWA
Mother also contends that DCFS’s inquiry under ICWA
was insufficient to meet the statutory requirements. DCFS
disagrees, and contends the inquiry was sufficient.
1. Factual background
On May 9, 2012, the juvenile court found that ICWA did
not apply.5 In orders on May 3, 2022 and July 21, 2022, the
juvenile court ordered DCFS to interview extended family
5 This finding was based in part on mother’s representation
in earlier dependency cases that she had no Native American
ancestry. Referrals and dependency court cases for mother’s
older children went back to the 1990s.
27
members about whether Ta. was an Indian child, and to provide
any required notice to identified tribes.
A last-minute information filed on July 1, 2022 included
ICWA updates for mother and Ta.’s father (father). It stated that
father denied any Native American heritage and declined to
provide any contact information for paternal relatives. Mother
also denied Native American heritage, stating, “My father was an
only child. He has passed. His parents have passed. My mother
is an only child. She lives in Georgia. When you guys first
started asking me about this, I talked to her and she didn’t have
any information regarding anything like this. Now she and I
don’t talk. We are estranged. Her parents are deceased. I don’t
have cousins and Aunts and Uncles to talk to. Everybody is dead.
So the answer to your question is no we don’t have any Indian
heritage that we know of.”
Months later, however, mother claimed to have Cherokee
heritage. A status review report dated October 5, 2022 stated
that mother reported she was adopted, and her biological mother
was of Cherokee descent. DCFS stated, “However, [mother’s]
biological parents are [MGM] DOB: [redacted] and [MGF] DOB:
[redacted]. According to the mother, [MGM] is of Cherokee
decent [sic] but no [further] details are known as maternal great
grandparents parents have passed away. The mother could not
provide the name or dates of birth for maternal great
grandparents or paternal great grandparents.”6 DCFS attempted
to contact MGM, and sent ICWA notices to the Sacramento Area
Director Bureau of Indian Affairs, the United States Department
6 Presumably, DCFS was familiar with MGM because prior
juvenile court cases terminated with three of mother’s children in
the custody of MGM as their legal guardian.
28
of the Interior, the Cherokee Nation, the Eastern Band of
Cherokee Indians, and the United Keetoowah Band of Cherokee
Indians of Oklahoma.
On March 23, 2023, MGM told DCFS that she did not have
any Native American ancestry, and she did not know why mother
told DCFS that she did. The Eastern Band of Cherokee Indians
and the Cherokee Nation responded to DCFS, stating that Ta.
was neither registered nor eligible to register for the tribes.
Although DCFS sent a second notice to the United Keetoowah
Band of Cherokee Indians of Oklahoma, the tribe apparently did
not respond.
2. Analysis
Mother contends that because “DCFS had consistent
contact with maternal and paternal family members throughout
the entire dependency proceedings,” DCFS should have done
more to determine whether Ta. had Native American heritage.
Mother points to the following evidence: a maternal aunt was
ruled out as a caregiver for the children in 2012 due to her
criminal history, a paternal grandfather attended a court hearing
in June 2013, Ta.’s brother M. lived with a paternal grandmother
in Illinois before her death in 2019, and DCFS once spoke with a
paternal aunt about the paternal grandmother’s health in 2018.
Mother argues that “in all these contacts with these family
members, the social workers never inquired of any of them
whether there was any Native American ancestry in the
maternal or paternal family.” She asserts that the matter
“should be remanded for proper ICWA inquiry.”
Section 224.2, subdivision (b) requires DCFS to “inquire
whether [a dependent child] is an Indian child”; that inquiry
“includes, but is not limited to, asking the child, parents, legal
29
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. . . .” (§ 224.2, subd. (b).) “Extended family members”
include “the Indian child’s grandparent, aunt or uncle, brother or
sister, brother-in-law or sister-in-law, niece or nephew, first or
second cousin or stepparent.” (25 U.S.C. § 1903(2); § 224.1, subd.
(c) [adopting federal definition].)
“A juvenile court’s finding that ICWA does not apply in a
proceeding implies that (a) neither the Department nor the court
had a reason to know or believe the subject child is an Indian
child; and (b) the Department fulfilled its duty of inquiry.
[Citation.] ‘“‘“[W]e review the juvenile court’s ICWA findings
under the substantial evidence test, which requires us to
determine if reasonable, credible evidence of solid value supports
the court’s order. [Citations.] We must uphold the court’s orders
and findings if any substantial evidence, contradicted or
uncontradicted, supports them, and we resolve all conflicts in
favor of affirmance.’”’” (In re H.B. (2023) 92 Cal.App.5th 711,
719.) “Appealing on the basis of ICWA or Cal-ICWA inquiry
error . . . does not change the fact that parental rights have been
terminated even if Indian ancestry is discovered.” (In re Dezi C.
(2024) 16 Cal.5th 1112, 1148, fn. 16.)
First, to the extent mother suggests that DCFS was
required to comply with current ICWA standards in 2012, 2013,
and 2018, we reject that contention. “In 2016, new federal
regulations were adopted addressing ICWA compliance.” (In re
Dezi C., supra, 16 Cal.5th at p. 1130.) “After the federal ICWA
regulations were adopted in 2016, California made conforming
amendments to Cal-ICWA, including portions of the Welfare and
30
Institutions Code related to ICWA inquiry and notice
requirements,” which became effective on January 1, 2019. (Id.
at p. 1131.) DCFS was not required to adhere to these amended
inquiry requirements in its contacts with family members before
2019. Mother cannot rely on the newer standards to demonstrate
error in older contacts with family members.
Second, after the juvenile court ordered additional ICWA
inquiries in 2022, DCFS complied by expanding its initial inquiry
and reporting the scope and results of its inquiry to the juvenile
court. DCFS was not required to track down family members for
whom mother and father did not provide contact information.
“[S]ection 224.2, subdivision (b) does not require inquiry with
every adult living extended family member.” (In re H.B., supra,
92 Cal.App.5th at p. 720.) “Where, as here, a parent largely fails
to cooperate with DCFS or to provide names and contact
information for extended family members, DCFS’s ability to
conduct an exhaustive ICWA inquiry necessarily is constrained.”
(In re Q.M. (2022) 79 Cal.App.5th 1068, 1082.) “[W]e cannot ask
the agency to intuit the names of unidentified family members or
to interview individuals for whom no contact information has
been provided.” (Ibid.)
The fact that DCFS considered a maternal aunt for a
relative placement in 2012, a paternal grandfather attended a
single hearing in 2013, and a paternal aunt in Illinois spoke to a
social worker once in 2018 does not demonstrate that DCFS had
the means to speak with these family members again in 2022. In
2022 father refused to provide contact information for his
relatives, mother provided information only about MGM, and no
evidence suggests that DCFS had ongoing contact with any
additional family members. DCFS was not required to search out
31
additional family members to inquire about whether Ta. might be
an Indian child. (See, e.g., In re S.S. (2023) 90 Cal.App.5th 694,
704-705 (“The Legislature’s intent [in enacting the 2019
amendment] was that agency caseworkers ask an added question
of extended family members whom caseworkers often already are
investigating in their usual course of work”].)
Mother also asserts that the notice provided to the tribes
was insufficient under section 224.3 because it included an
incorrect date of birth for MGM7 and placed MGF’s information
in the wrong box on the form. DCFS asserts that any error in the
notices to tribes is irrelevant, because there was no “reason to
know” Ta. was an Indian child, so the notice requirement under
section 224.3 was never triggered.
DCFS is correct. The requirements of section 224.3 apply
once DCFS or the juvenile court has a “reason to know” an Indian
child is involved in a case. (See § 224.3, subd. (a)(1); In re
Dominic F. (2020) 55 Cal.App.5th 558, 568; 25 U.S.C. § 1912(a).)
“[T]here is ‘reason to know’ a child is an Indian child if any one of
six statutory criteria is met—e.g., if the court is advised that the
child is a member or eligible for membership in an Indian tribe,
the child's or parent’s residence is on a reservation, the child is or
has been a ward of a tribal court, or either parent or the child
possess an identification card indicating membership or
citizenship in an Indian tribe.” (In re Q.M., supra, 79
Cal.App.5th at p. 1084, citing § 224.2, subd. (d).) None of these
six statutory criteria was met in this case. DCFS asked mother
and father about these six criteria specifically, and they
answered no to each of them.
7 The notice mother references in the record appears to have
the correct date of birth for MGM.
32
The only information provided about Ta.’s possible status
as an Indian child was mother’s claim that MGM had Cherokee
heritage, which MGM denied. “A suggestion of Indian ancestry is
not sufficient under ICWA or related California law to trigger the
notice requirement.” (In re Dominic F., supra, 55 Cal.App.5th at
p. 571.) Thus, mother has not demonstrated error under ICWA.
DISPOSITION
The juvenile court’s order is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
COLLINS, J.
We concur:
CURREY, P. J.
MORI, J.
33