The juvenile court terminated parental rights with respect to three siblings after finding that the children were likely to be adopted and that the Indian Child Welfare Act (ICWA) did not apply.

The children were declared dependents due to the mother's drug use. After the mother failed to comply with her drug treatment program, the juvenile court set a Welfare and Institutions Code section 366.26 hearing for the children. At the hearing, the children's social worker testified regarding the notice she had given various Indian tribes in accordance with ICWA and the responses she had received. The juvenile court concluded that proper notice had been given under ICWA and terminated parental rights to all three children. On appeal, the parents contended that there was insufficient evidence to support the juvenile court's finding that there was a likelihood that the children would be adopted, the juvenile court abused its discretion in finding that the termination of parental rights would not substantially interfere with sibling relationships, and the juvenile court erred in failing to consider the wishes of the children prior to terminating parental rights. They further contended that the juvenile court failed to secure compliance with ICWA because, despite the social worker's testimony that she used the correct forms and served the notices by registered mail, the Contra Costa County Department of Social Services (the department) had failed to submit the required documentation of notice to the court for its review.

The Court of Appeal reversed the juvenile courts order's after concluding that ICWA's notice requirements were not properly complied with and noting that the record did not reflect a likelihood of adoption sufficient to support the termination of parental rights. As an initial matter, the appellate court denied the department's request to dismiss the appeal on the ground that the mother had not authorized it. It found that counsel presumably had the necessary authority to do so since there was not a satisfactory showing otherwise.

The appellate court further noted that the department had failed to satisfy ICWA by not submitting the required documentation of notice to the court for its review. To satisfy the notice provisions of ICWA and to provide a proper record for the juvenile and appellate courts, a social service agency should follow a two-step procedure. First it should identify any possible tribal affiliations and send proper notice to those entities, return receipt requested (Cal. Rules of Court, rule 1439(f)). Second, the agency should provide the juvenile court with a copy of the notice sent and the return receipt, as well as any correspondence received from the Indian entity relevant to the child's needs. While the testimony from the children's social worker provided evidence that she used the correct form and served the notices to the tribes by registered mail, the court was unable to evaluate the sufficiency of the notices sent because copies of the forms were never submitted to the court. Moreover, the record did not provide reason to consider whether there was a defect in the notice given to several of the tribes since the department failed to serve the notice on the chairperson or designated agent for service of process as required by California Rule of Court rule 1439(f)(2). Absent some evidence that the various business committees served had authority to speak for the tribes or that the responses received by the social worker came from authorized agents, the failure to submit the necessary documents to the court could not be considered harmless.

The appellate court also noted that the juvenile court need not make an express finding that ICWA does not apply; as long as the record reflects that the juvenile court considered the issue, its finding as to the applicability of ICWA could be either express or implied. Here, the juvenile court had implicitly found ICWA inapplicable by expressly finding that ICWA notice provisions were complied with and by terminating parental rights under the usual rather than the heightened ICWA standards.

In regard to the order terminating parental rights, the appellate court found that there was insufficient evidence to support the juvenile court's finding that there was a likelihood that the children would be adopted. The appellate court noted that while the age and physical health of the two older children weighed in favor of adoptability, their emotional and psychological development presented a potential obstacle to adoption. They were reported to be hyperactive, have poor impulse control, and engage in dishonest behavior. Moreover, the department had failed to provide evidence of approved families willing to adopt the children. The fact that foster parents were willing to consider adopting the two oldest children was too vague to be considered evidence that some family would adopt the children. The standard of clear and convincing evidence requires a finding of high probability of adoptability. Usually, the fact that prospective adoptive parents have expressed interest in adopting a child is evidence that the child's age, physical condition, mental state, and other matters are not likely to dissuade individuals from adopting the child. Alternatively, evidence of approved families willing to adopt a child of a particular age, physical condition, and emotional state can be used to evaluate the likelihood of the child's adoption. The social worker's conclusion alone was insufficient to support a finding of adoptability. Therefore, the appellate court concluded that the evidence failed to clearly and convincingly demonstrate that it was likely the two children would be adopted within a reasonable time.

As to the mother's last two contentions, that the juvenile court erred by (1) failing to consider the children's wishes prior to terminating parental rights and (2) failing to consider and provide for sibling visitation, the appellate court held that it was unnecessary to decide either claim since reversal was required on other grounds. After concluding that the mother had standing to raise the issue of sibling visitation, the appellate court directed the juvenile court to consider the wishes of the children on remand, in accordance with section 366.26(h), as well as to consider sibling visitation when making further placement and case plan orders.

Therefore, the appellate court reversed the orders terminating parental rights and remanded the matter to the juvenile court for further proceedings.