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Name: In re K.B.
Case #: E046005
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 05/13/2009

Reversal was not required for failure to provide ICWA notice or failure to provide active efforts prior to placement in foster care. In an appeal from the termination of their parental rights, the parents argued that the juvenile court lacked jurisdiction to place the children in foster care because the court failed to comply with ICWA notice provisions. The appellate court rejected the argument, agreeing with the line of cases which hold that failure to comply with ICWA’s notice provisions does not divest courts of jurisdiction to remove an Indian child from the custody of the parents. Parents also contended that even if the failure to provide ICWA notice was not jurisdictional, it was nevertheless prejudicial error because if notice had been timely given, the children would have been found to be Indian children before the disposition hearing, and the court would have been required to provide remedial services prior to placing the children in foster care. The appellate court rejected that argument as well, finding that active efforts were made prior to the disposition hearing. Further, even if the court had been on notice that ICWA might apply, it was not required to find that active efforts were made prior to placing the children in foster care. The mother here allowed the father, a registered sex offender, to move back in with the family. Under these circumstances, no reasonable court would have ordered the children placed with either parent while services were given. Foster care in this case did not conflict with the objectives of ICWA, which was intended to protect Indian children. ICWA was not intended as a shield to permit abusive treatment of Indian children by their parents. The court also correctly found that the active efforts requirement was satisfied. Mother was provided numerous services, and active efforts were not required for father for the same reason they were not required prior to placement of the children in foster care. Substantial evidence supports the finding of adoptability of special needs minors. Finally, substantial evidence supported the finding that the children were adoptable. There is no rule that special needs children are only adoptable if the adoptive parents have already been approved. The issue is not whether there is an approved adoptive family available but whether the foster parents were sufficiently committed to adopting the children to support a finding of adoptability, which was the case here.