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Juvenile Law

JUVENILE LAW
Juvenile Law Case Summaries

■ In re K.B., No. E046005

 The parents of Ka.B., Kr.B. and D.B. appeal from an order terminating their parental rights and placing the children for adoption.  (Welf. & Inst. Code, § 366.26.)[1]  They contend that, following our limited remand in their prior appeal from the termination order (In re K[.]B. (Dec. 7, 2006, E039777) [nonpub. opn.]) for compliance with the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.), the juvenile court erred by failing to vacate its disposition order and by finding, in compliance with ICWA’s requirements, that “active efforts” were made to prevent the breakup of the family.  They also contend that there was insufficient evidence to support the finding that the children are likely to be adopted.[2]  We reject these contentions, and we affirm the judgment of the juvenile court.

FACTUAL AND PROCEDURAL HISTORY

            Ka.B, Kr.B. and D.B. and their half sister, Ke.B. (hereafter Ka., Kr., D. and Ke.), were the subjects of a prior dependency proceeding which was initiated in August 2001 and terminated in December 2003 with the four children being returned to the mother’s custody.[3]  The petition, which was filed before D. was born, alleged that the mother’s residence was filthy; that the mother left the children with an unrelated caretaker for an extended period without providing adequately for their care and support, thus placing the children at risk of serious physical harm; that the children were extremely dirty and that their health needs were not being provided for; that the mother and the father of Ka. and Kr. had a history of criminal behavior; and that the fathers were not providing support.  The father of Ka. and Kr. (i.e., the appellant father in this appeal) was in prison on drug charges, and the whereabouts of Ke.’s father were unknown.  When D. was born in February 2003, a petition was filed as to him, but he remained in the physical custody of the mother.  The mother successfully reunited with the children, and the petition was dismissed in December 2003.

            The father was released from prison on parole during the pendency of the prior proceeding, but because of a prior conviction for lewd and lascivious acts on a child under the age of 14 (Pen. Code, § 288, subd. (a)), his parole conditions forbade contact with minors under a specified age,[4] including his own children, and forbade him to live with any minor “18 years or younger.” 

            The current petition was filed on March 9, 2004.  It alleged that the father, who was living with the family in violation of the conditions of his parole,[5] had molested Ke., then 14 years old, and that the mother knew or reasonably should have known that the children were at risk of sexual abuse.  The petition alleged that the children were filthy and infested with head lice, that the parents engaged in acts of domestic violence, and that the mother had previously been provided with reunification and family maintenance services but had failed to benefit from those services.  The allegations of the petition were found true.  The children were placed in foster care.  Services were ordered for the mother, but not for the father.  Ultimately, parental rights were terminated and the children were freed for adoption by their foster parents.[6] 

            During the prior dependency proceeding, the father informed the Department of Public Social Services (DPSS) that he might have Indian ancestry.  No action was taken to notify the appropriate tribal authorities pursuant to ICWA before that case was dismissed.  When the current petition was filed, the father’s information was ignored, and no inquiry was made of either parent as to possible Indian ancestry.  The father also failed to inform the court that ICWA might apply.  The father asserted for the first time in his appeal from the original termination order in the current proceeding that the court had failed to comply with the notice provisions of ICWA.  (In re K[.]B., supra, E039777 [at pp. 15-18].)  We affirmed the juvenile court’s finding that the children are adoptable, but reversed the termination order and remanded the cause for the limited purpose of providing the mandatory notice to the appropriate tribal authorities.  We ordered that “If, after proper notice, a tribe claims the minors . . . as Indian children, the juvenile court shall proceed in conformity with all provisions of ICWA.”  (Id. [at p. 18].)

            Following remand, notice was given, and on May 31, 2007, the Choctaw Nation of Oklahoma determined that the children had Choctaw heritage and that they were Indian children within the meaning of ICWA.[7]  The father was recognized as a member of the tribe on June 30, 2007.  On August 27, 2007, the juvenile court found that ICWA applied.  The tribe intervened but did not assert jurisdiction.  It chose instead to review all filings in the case, to work directly with the social worker and to make recommendations.  Several months later, after having received the reports filed by DPSS, the tribe stated that it was in agreement with termination of parental rights and the plan for adoption.  It originally asked that all family members be considered as adoptive parents, but ultimately agreed to the plan for adoption by the children’s current non-tribal[8] caretakers. 

            On June 5, 2008, at the scheduled hearing on termination of parental rights, the parents asked the court to vacate all prior orders as having been rendered in violation of ICWA.  The court conducted a hearing and determined that the substantive requirements of ICWA had been met and that the earlier failure to give notice as required by ICWA was not prejudicial.  The court then conducted a hearing pursuant to section 366.26.  It terminated parental rights and adopted a permanent plan of adoption by the children’s current caretakers.  The parents appealed. 

■ Held:

In a juvenile dependency action, juvenile court order terminating parental rights and placing the children for adoption is affirmed where: 1) the court's failure to comply with the Indian Child Welfare Act notice provisions did not divest the court of jurisdiction to remove an Indian child from the custody of the parents; 2) the court was not required to find that active efforts were made to prevent the breakup of the family before the disposition hearing as the parents' history indicated the futility of offering services; 3) the active efforts requirement under ICWA to prevent the breakup of the Indian family was satisfied; and 4) active efforts were made to find appropriate family members to place the children with, and the children's placement with the prospective adoptive parents satisfies the requirements of ICWA; and 5) substantial evidence supports the finding that the children are adoptable.
In re K.B.-E046005- 5/13/09 CA4/2
In re K.B.-E046005- 5/13/09 CA4/2-PDF

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