Filed 9/12/13 In re Emma V. CA2/3

                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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 This opinion has not been certified for publication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.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE


In re EMMA V., a Person Coming Under the                                 B245807
Juvenile Court Law.
_____________________________________                                   (Los Angeles County
LOS ANGELES COUNTY DEPARTMENT                                           Super. Ct. No. CK74781)
OF CHILDREN AND FAMILY SERVICES,

         Plaintiff and Respondent,

         v.

JENNIFER R.,

         Defendant and Appellant.




         APPEAL from an order of the Superior Court of Los Angeles County,
Sherri Sobel, Juvenile Court Referee. Affirmed.
         Grace Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
         John F. Krattli, County Counsel, James M. Owens, Assistant County Counsel,
Jeanette Cauble, Deputy County Counsel.


                                        _________________________
       Jennifer R. (mother) appeals from an order terminating parental rights to Emma V.
under section 366.26 of the Welfare and Institutions Code.1 She contends substantial
evidence does not support the findings the Indian Child Welfare Act of 1978 (the ICWA)
(92 Stat. 3069, 25 U.S.C. §§ 1901-1963) does not apply and Emma was adoptable.
We affirm.
                          FACTS AND PROCEDURAL HISTORY
       Emma was born in 2008 to mother and M.V. (father).2 Mother had a history of
substance abuse, was a current abuser of alcohol, and had mental and emotional
problems.3 Father had a history of substance abuse. Emma was a prior court dependent
from September 2008 to December 2009. She was reunited with mother.
       Emma was detained on March 14, 2011, when mother allowed a stranger to drive
her away, and a section 300 petition was filed by the Department of Children and Family
Services (“Department”).
       On May 16, 2011, Emma was declared a dependent of the court based on
sustained allegations under section 300, subdivision (b), as to mother, that the child was
at substantial risk of serious physical harm due to mother’s failure to adequately protect
her, willful or negligent failure to supervise her adequately, and inability to provide
regular care due to mental illness and substance abuse. The court found the ICWA did
not apply. Custody was taken from parents. The Department was ordered to provide
reunification services.



1     All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.

2      The dependency court found father to be the children’s presumed father.

3      Mother was a former dependent child of the court. She was removed from
maternal grandparents at age seven, reunited with maternal grandmother, and removed
again and placed in foster care at age 16, where she remained until she emancipated.
Emma was born when mother was 16 years old.



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       Parents failed to reunify with Emma. On November 28, 2011, the dependency
court terminated reunification services and set the matter for a section 366.26 hearing on
March 26, 2012.
       On October 16, 2012, after finding by clear and convincing evidence that it is
likely Emma will be adopted, parental rights were terminated.
                                          DISCUSSION
       1. Substantial evidence supports the ICWA finding.
       Mother contends substantial evidence does not support the finding the ICWA does
not apply, in that the Department failed to investigate the maternal relatives and thus
provided inadequate notice to the tribes. We disagree with the contention.
                 a. Standard of review.
       We review the dependency court’s determination’s “whether proper notice was
given under ICWA and whether ICWA applies to the proceedings” for substantial
evidence. (In re E.W. (2009) 170 Cal.App.4th 396, 403.) In determining whether
substantial evidence supports the factual findings, “all intendments are in favor of the
judgment and [we] must accept as true the evidence which tends to establish the
correctness of the findings as made, taking into account as well all inferences which
might reasonably have been drawn by the trial court.” (Crogan v. Metz (1956) 47 Cal.2d
398, 403-404.)
                 b. Relevant procedural facts.
       In Emma’s 2008-2009 dependency case, the dependency court found the ICWA
did not apply.
       In the current dependency case, mother stated that maternal grandfather Anthony
James R. was a Cherokee. On April 7, 2011, the court ordered the Department to give
notice of the proceedings to the Cherokee tribes.
       After the April 7 hearing, the social worker interviewed mother and sent notice of
the proceedings to the three Cherokee tribes, Bureau of Indian Affairs, and Secretary of
the Interior, based on information obtained from mother. The notice stated, “[e]nclosed
information was obtained from the mother on 04/11/2011.” Mother stated she, Emma,


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and maternal grandmother were not tribal members. She did not know maternal
grandmother’s and maternal grandfather’s current or former addresses. The notice to the
tribes identified mother, father, maternal grandmother, and maternal grandfather. The
notice stated Anthony James R. was born was in July 1968 and was incarcerated, his tribe
was Cherokee, and his tribal membership was unknown. He and mother shared the same
last name. He was mistakenly listed in the box for the paternal grandmother, rather than
in the box for maternal grandfather.
       The United Keetoowah Band of Cherokee Indians replied that Emma was not a
descendant of anyone on the Keetoowah Roll. Stating it searched its records for, among
others, “maternal grandfather” Anthony James R., the Cherokee Nation replied that
Emma was not an Indian child in relationship to the Cherokee Nation. The Eastern Band
of Cherokee Indians received the notice but did not respond.
       On May 16, 2011, the court reviewed the answers received from the tribes and
stated: “[t]he only answers we received from the tribe so far is that the child is not
enrolled or eligible and so this is a non-ICWA case at this point. If there’s any further
information, I will change my orders. But, as of today, this is a non-ICWA case.”
              c. The ICWA.
       “The ICWA protects the interests of Indian children and promotes the stability and
security of Indian tribes by establishing minimum standards for, and permitting tribal
participation in, dependency actions. (25 U.S.C. §§ 1901, 1902, 1903(1), 1911(c), 1912.)
The substantive provisions of the ICWA apply to the minor’s placement in adoption and
foster care and to other hearings, such as termination of parental rights, which affect the
minor’s status.” (In re Holly B. (2009) 172 Cal.App.4th 1261, 1266.)
       An Indian child is defined in the ICWA as “any unmarried person who is under
age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
(25 U.S.C. § 1903, subd. (4).) “A determination by an Indian tribe that a child is or is not
a member of or eligible for membership in that tribe, . . . shall be conclusive.” (§ 224.3,
subd. (e)(1).) When the dependency court knows or has reason to know that an Indian


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child is involved, notice of the dependency proceeding must be given to the parents and
tribe. (25 U.S.C. § 1912, subd. (a).) A social worker having reason to know the child is
or may be an Indian child must interview, among others, the child’s parents and
grandparents. (Cal. Rules of Court, rule 5.481(a)(4).)
              d. Substantial evidence.
       The contention the maternal relatives were not investigated is easily rejected.
The notice stated that mother was interviewed about her Indian heritage and the
information she provided was included in the notice. As she did not know any current or
former address of maternal grandparents or the identity of other maternal ancestors, and
no maternal relatives appeared in the proceedings or were involved in the case, there
were no other maternal relatives for the Department to interview. This is substantial
evidence the Department investigated Emma’s possible Indian heritage and provided all
the notice available.
       To the extent mother contends notice to the tribes was inadequate because
maternal grandfather was erroneously listed as “child’s paternal grandmother,” we
disagree with the contention. The notice contained his male first name, his year of birth,
and the fact he and mother shared the same last name. This identifying information made
it clear he was the maternal grandfather. The Cherokee Nation’s response indicates it
was not misled. None of the tribes determined Emma was an Indian child. Moreover,
there was a finding in Emma’s previous dependency case that the ICWA did not apply.
       We conclude substantial evidence supports the findings notice was adequate and
the ICWA does not apply.
       2. Substantial evidence supports the adoptability finding.
       Mother contends substantial evidence does not support the finding Emma was
likely to be adopted. We disagree with the contention.
              a. Standard of review.
       Parental rights may be terminated and the child ordered placed for adoption if the
court determines, by clear and convincing evidence, it is likely the child will be adopted.
(§ 366.26, subd. (c)(1).) “ ‘The issue of adoptability posed in a section 366.26


                                             5
hearing focuses on the minor, e.g., whether the minor’s age, physical condition, and
emotional state make it difficult to find a person willing to adopt the minor. [Citations.]
Hence, it is not necessary that the minor already be in a potential adoptive home or that
there be a proposed adoptive parent “waiting in the wings.” [Citations.]’ [Citation.]”
(In re Lukas B. (2000) 79 Cal.App.4th 1145, 1154.) On appeal, we review the
adoptability determination for substantial evidence. (Ibid.) In determining whether an
order is supported by substantial evidence, “we look to see if substantial evidence,
contradicted or uncontradicted, supports [it]. [Citation.] In making this determination,
we draw all reasonable inferences from the evidence to support the findings and orders of
the dependency court; we review the record in the light most favorable to the court’s
determinations; and we note that issues of fact and credibility are the province of the trial
court. [Citation.]” (In re Heather A. (1996) 52 Cal.App.4th 183, 193.) “We do not
reweigh the evidence or exercise independent judgment, but merely determine if there are
sufficient facts to support the findings of the trial court.” (In re Matthew S. (1988)
201 Cal.App.3d 315, 321.) Thus, the pertinent inquiry is whether substantial evidence
supports the finding, not whether a contrary finding might have been made.
(In re Dakota H. (2005) 132 Cal.App.4th 212, 228.)
              b. Relevant facts.
       Emma was detained in a foster home in March 2011 until she could be placed in a
relative’s home. She was placed with paternal aunt Teresa V. in May 2011. Health
issues which Teresa developed prevented Teresa from continuing to provide a home for
Emma. In December 2011, Emma was replaced in the home of paternal relative Laura
S., who loved Emma and wanted to adopt her.4 Emma did well in Laura’s home. In May
2012, Laura concluded that personal issues with her immediate family prevented her
from proceeding with the adoption process. The Department planned to contact paternal
aunt Veronica V., who knew and wanted to adopt Emma, about placement. At the
hearing on May 21, 2012, the court recognized Emma was not in an adoptive home and


4      Emma was temporarily placed in a foster home until Laura’s home was approved.


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another paternal relative wanted to adopt. At the hearing on October 16, 2012, Emma’s
attorney told the court that Emma was currently in an adoptive home.
       In her out-of-home placements, Emma was “friendly and outgoing.” She was
happy and healthy. She ate and slept well. She responded well to positive reinforcement.
She interacted well with her foster parents and other adults but fought with other children
for toys and attention. She participated in individual therapy to address her anger issue
and to learn to verbalize her feelings. She made progress in therapy. She enjoyed school
and spoke happily about school and her teacher.
              c. Substantial evidence.
       Ample substantial evidence supports the finding Emma was likely to be adopted.
She was a physically and emotionally healthy young four-year-old. She had many
positive attributes, such as eating and sleeping well, being a happy child, responding well
to discipline, and getting along well with adults. Her problematic interaction with other
children in the home was being successfully addressed in individual therapy. There was
evidence two relative caretakers wanted to make her a permanent family member but
their personal circumstances prevented them from adopting her. Emma was in an
adoptive home at the time of the hearing.5 Mother reargues the evidence and asks us to
reweigh it. That is not our role. (In re Matthew S., supra, 201 Cal.App.3d at p. 321.)
The foregoing is substantial evidence supporting the finding Emma was likely to be
adopted within a reasonable time.




5       To the extent mother contends Emma was not in an adoptive home at the time of
the hearing, we conclude mother mischaracterizes the record. The record indicates that,
in May 2012, paternal aunt Veronica wanted Emma placed with her for adoption and the
Department planned to pursue this placement. Five months later, Emma’s counsel told
the court, without contradiction, that Emma was in an adoptive home. It is reasonable to
infer from this record that Emma was in an adoptive home at the time of the hearing. In
any event, it is not necessary for an adoptive parent to be “waiting in the wings” for the
court to conclude a child is likely to be adopted. (In re Lukas B., supra, 79 Cal.App.4th
at p. 1154.)


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                              DISPOSITION
     The order is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                       KLEIN, P. J.


We concur:


             CROSKEY, J.




             KITCHING, J.




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