In re N.S. CA4/1

Filed 11/9/26 In re N.S. CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA In re N.S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH D088125 AND HUMAN SERVICES AGENCY, (Super. Ct. No. SJ11285D) Plaintiff and Respondent, v. A.C., Defendant and Appellant. APPEAL from an order of the Superior Court of San Diego County, Blair A. Soper, Judge. Affirmed. Roni S. Keller, under appointment by the Court of Appeal, for Defendant and Appellant.  Damon M. Brown, County Counsel, Lisa M. Maldonado, Chief Deputy County Counsel, and Indra N. Bennett, Deputy County Counsel, for Plaintiff and Respondent. A.C. (Mother) appeals the juvenile court’s order terminating her parental rights to N.S. (Welf. & Inst. Code,1 § 366.26.) Mother contends the juvenile court erred in finding the San Diego County Health and Human Services Agency (Agency) complied with inquiry requirements of the Indian Child Welfare Act of 1978 (ICWA), 25 United States Code section 1901 et seq., and Welfare and Institutions Code section 224 et seq. In particular, Mother alleges the Agency did not inquire as to possible ties to tribes in Arkansas and omitted important information from the inquiry letters to the tribes. Mother also argues substantial evidence does not support the juvenile court’s finding that N.S. was generally and specifically adoptable. Finding no error, we affirm. We also decline to order a conditional remand for further ICWA inquiry. FACTUAL AND PROCEDURAL BACKGROUND In June 2024, the Agency filed a section 300, subdivision (g) petition alleging N.S. had been left without any provision for support after Mother gave temporary physical custody of N.S. to maternal great aunt, P.L., and P.L. was no longer willing to continue providing care. Mother was incarcerated and Father’s2 whereabouts were unknown. At the detention hearing, the court found the Agency had made a prima facie case on its 1 Undesignated statutory references are to the Welfare and Institutions Code. 2 Father is not a party to this appeal. 2 petition, detained N.S. in out-of-home placement, and granted Mother reasonable visitation with her. At the contested adjudication hearing in October 2024, the juvenile court dismissed the allegation under section 300, subdivision (g). However, the trial court made a true finding on the Agency’s amended section 300, subdivision (b) petition. That pleading alleged there was a substantial risk that N.S. would suffer serious physical harm or illness as a result of her parents’ inability to supervise or protect her adequately by willfully or negligently failing to provide her with adequate food, clothing, shelter, or medical treatment. The court also took jurisdiction over N.S., declared her a dependent, and ordered reunification services for Mother and Father. At the six-month review hearing, the Agency recommended N.S. remain in a licensed foster home and for reunification services to continue. Mother requested visits with N.S. and the court ordered that N.S.’s wishes be taken into consideration as she did not want to visit with Mother. The court adopted and incorporated the Agency’s recommendations. Mother and Father were not present during the 12-month review hearing in October 2025. The court terminated reunification services for both Mother and Father finding there had not been any progress to resolve the problems that led to the removal, ordered N.S. continue to be placed in a foster home, and set a permanency planning hearing pursuant to section 366.26. The juvenile court held the contested section 366.26 hearing in March 2026. At the Agency’s request, the court admitted several Agency reports and addenda. The court found by clear and convincing evidence that N.S. was generally and specifically adoptable. Finding no exceptions applied, the 3 court terminated the parental rights of both Mother and Father and designated N.S.’s current caregivers as prospective adoptive parents. DISCUSSION A. Substantial Evidence Supports the Juvenile Court’s ICWA Findings 1. Guiding Principles Congress enacted ICWA to address concerns regarding the separation of Native American children from their tribes through adoption or foster care placement. (In re Isaiah W. (2016) 1 Cal.5th 1, 7.) Sections 224.2 and 224.3 describe California’s ICWA inquiry and notice requirements for juvenile dependency cases. Under sections 224.2 and 224.3, the Agency and the juvenile court are generally obligated to: (1) conduct an initial inquiry regarding whether there is a reason to believe the child is, or may be, a Native American child; (2) if there is, then further inquire whether there is a reason to know the child is a Native American child; and (3) if there is, then provide ICWA notice to allow the Native American tribe to make a determination regarding the child’s tribal membership. (See In re D.S. (2020) 46 Cal.App.5th 1041, 1048–1052 (D.S.); In re Austin J. (2020) 47 Cal.App.5th 870, 882–885.) There is reason to believe a child is Native American when there exists “information suggesting that either the parent of the child or the child is a member or citizen, or may be eligible for membership or citizenship in an Indian tribe.” (§ 224.2, subds. (e)(1), (d).) Further inquiry includes, but is not limited to, interviewing the parents and extended family members, contacting the Bureau of Indian Affairs (BIA) and the State Department of Social Services for assistance identifying the names and contact information of the tribes in which the child may be eligible for membership, and contacting the relevant tribes and sharing any information necessary for the 4 tribe to make a membership or eligibility determination. (§ 224.2, subd. (e)(2)(A)–(C); rule 5.481(a)(4).) “[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.” (In re A.M. (2020) 47 Cal.App.5th 303, 314, disapproved on other grounds in In re Dezi C. (2024) 16 Cal.5th 1112, 1152, fn. 18.) 2. Additional Background In June 2024, the Agency asked several family members about possible Native American heritage. Mother reported she did not know whether she had any Native American heritage, denied having any reason to believe N.S. was an Indian child, and signed the ICWA-020 form affirming her denial of Native American ancestry. Father also denied Native American heritage and signed the ICWA-020 affirming his denial. P.L. stated her grandfather was born and lived on a reservation in Texas, but she did not know the spelling of his name or any other details. She provided the names of N.S.’s maternal grandfather, maternal great-grandmother and her parents, and stated they were born in Texas. P.L. also reported that one maternal great-great-great- grandmother lived on a reservation and the other married an “Indian Cowboy.” P.L. did not believe anyone was registered with a tribe. The maternal great-great uncle, E.F., reported the family had “some Native American heritage, but it was generations ago” and he did not have any information. He also stated his grandfather grew up on a reservation, but he did not know the state or any other details. The maternal great uncle, L.H., reported that his father’s side of the family had Cherokee and Blackfoot heritage from “slavery time or right after slavery.” L.H. provided the names, dates of birth, and places of birth, for his parents and paternal grandparents. 5 His father and paternal grandparents were born in Arkansas. A family friend reported that P.L. told her that her “grandparents may have been affiliated with a tribe in Texas, near Oklahoma.” After speaking with the family, in June 2024, the Agency mailed inquiry letters to the following seven Native American tribes: Eastern Band of Cherokee Indians, Cherokee Nation, United Keetoowah Band of Cherokee Indians, Blackfeet Tribe, Alabama-Coushatta Tribe of Texas, Ysleta del Sur Pueblo, and Kickapoo Traditional Tribe of Texas. The inquiry letters provided the names, known dates of birth and death of 10 maternal relatives, and indicated there was a claim of “Cherokee, Blackfeet and Native American ancestry in Texas.” Apart from the Blackfeet tribe, all tribes responded to the Agency’s inquiries and determined N.S. was neither an Indian child nor eligible for tribal membership. In January 2026, ahead of the section 366.26 hearing, the Agency asked family members about possible Native American ancestry, and this time, they all denied Native American ancestry. At nearly every hearing, the court asked either the parties or the Agency whether there was any new information regarding ICWA and each time the parents either denied Native American heritage or the Agency stated it had no new information. Each time, the court found, without prejudice, that ICWA did not apply. At the October 2024 contested adjudication hearing, the court adopted the Agency’s amended recommendations and found there was no reason to know that N.S. was an Indian child and that the Agency conducted an adequate further inquiry. 6  3. Analysis Mother contends the Agency’s ICWA inquiry was deficient because the Agency: (1) did not inquire with the BIA and State Department of Social Services; (2) did not inquire with federally recognized tribes with ties to Arkansas; and (3) did not “include all possible identifying information” about N.S.’s ancestors in its written inquiries to the tribes. We disagree. First, Mother’s contention the Agency erred by failing to contact the BIA and the State Department of Social Services lacks merit. As part of the Agency’s duty of further inquiry, it must contact the BIA or State Department of Social Services “for assistance in identifying the names and contact information of the tribes in which the child may be a member or citizen, or eligible for membership or citizenship in.” (§ 224.2, subd. (e)(2)(B).) Here, the record demonstrates the Agency was able to identify and obtain the names and contact information for the tribes. In fact, the Agency successfully contacted the various tribes and received responses to its inquiries. While the Blackfeet tribe did not respond, the record shows the Agency made contact and left several voicemails. Accordingly, the Agency’s duty of further inquiry did not require it to contact the BIA or State Department of Social Services because it did not need assistance identifying name or contact information for the tribes. (§ 224.2, subd. (e)(2)(C); In re H.M. (2025) 109 Cal.App.5th 1171, 1184 (H.M.).) Second, Mother’s contention that the Agency erred by not inquiring of federally recognized tribes with ties to Arkansas is unavailing. To begin, pursuant to Evidence Code sections 459 and 452, subdivision (h), we take judicial notice of the fact there are no federally recognized tribes located in 7 Arkansas.3 L.H. is the only family member who mentioned relatives born in Arkansas who potentially had Cherokee or Blackfeet heritage. As a result, the Agency contacted all federally recognized Cherokee tribes and the sole federally recognized Blackfeet tribe.4 (H.M., supra, 109 Cal.App.5th at p. 1177 [naming the three federally recognized Cherokee tribes].) All tribal responses determined N.S. was not an Indian child. When the Agency contacted L.H. ahead of the section 366.26 hearing, he denied any Native American heritage. Because the Agency “is not required to ‘cast about’ for information or pursue unproductive investigative leads,” the court reasonably concluded the Agency’s inquiry was adequate. (D.S., supra, 46 Cal.App.5th at p. 1053.) Third, we reject Mother’s argument that the Agency’s inquiry letters were deficient because they did not include “all of the information about the ancestral lineage.” Specifically, Mother claims the letters did not mention the relatives’ places of birth. When inquiring in writing with the tribes, the Agency’s duty of further inquiry does not require it to list every detail. Instead, the Agency’s contact with the tribes “shall include sharing information . . . for the tribe to make a membership or citizenship eligibility determination . . . .” (§ 224.2, subd. (e)(2)(C).) Here, the record adequately 3 A list of federally recognized tribal entities is published at 91 Fed.Reg. 4102 (Jan. 30, 2026). The list is available at <https://www.govinfo.gov/content/pkg/FR-2026-01-30/pdf/2026-01899.pdf> [as of Nov. 9, 2026], archived at <[https://perma.cc/K4ML-8SCW]>. 4 The Federal Register listing of all recognized Indian tribes contains only one Blackfeet tribe, the “Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.” The list is available at <https://www.govinfo.gov/content/pkg/FR-2026-01-30/pdf/2026-01899.pdf> [as of Nov. 9, 2026], archived at <[https://perma.cc/K4ML-8SCW]>. 8 supports the court’s conclusion that the Agency complied with this requirement, because the Agency’s June 2024 inquiry letters included the names (including “AKA” names), claimed tribal affiliations, dates of birth, dates of death, and other relevant information to determine N.S.’s eligibility. Every tribal response indicated N.S. was not an Indian child or eligible for enrollment. None of the tribes requested additional information from the Agency. Thus, the record supports the court’s conclusion that the Agency did not err. (In re M.W. (2020) 49 Cal.App.5th 1034, 1046 [“section 224.2, subdivision (e) does not require that any extensive or particular formal documentation of ICWA inquiry be provided to the tribe”].) The juvenile court’s finding, based on the evidence provided, that there was no reason to know N.S. was an Indian child and that ICWA did not apply, is supported by substantial evidence. B. Substantial Evidence Supports Court’s Finding N.S. Was Specifically and Generally Adoptable 1. Guiding Principles “If the court cannot safely return a dependent child to a parent’s custody within statutory time limits, the court must set a hearing under section 366.26.” (In re Caden C. (2021) 11 Cal.5th 614, 630.) “[W]hen the court orders the section 366.26 hearing, reunification services have been terminated, and the assumption is that the problems that led to the court taking jurisdiction have not been resolved.” (Ibid.) The purpose of a section 366.26 hearing is to determine and implement the appropriate permanent plan for a dependent child. (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) The juvenile court can choose among three permanent plans: adoption, legal guardianship, and long-term foster care. (§ 366.26, subd. (b).) When a child is adoptable, adoption is the preferred permanent plan unless there are 9 countervailing circumstances or adoption is not in the child’s best interest. (In re Heather B. (1992) 9 Cal.App.4th 535, 546; In re Autumn H. (1994) 27 Cal.App.4th 567, 574.) Before terminating parental rights, the juvenile court must find by clear and convincing evidence that it is likely the child will be adopted within a reasonable amount of time. (§ 366.26, subd. (c)(1).) “In making this determination, the juvenile court must focus on the child, and whether the child’s age, physical condition, and emotional state may make it difficult to find an adoptive family.” (In re Gregory A. (2005) 126 Cal.App.4th 1554, 1561.) In reviewing the court’s finding, 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. (Id. at pp. 1561–1562.) “We give the court’s finding of adoptability the benefit of every reasonable inference and resolve any evidentiary conflicts in favor of affirming.” (Id. at p. 1562.) As the appellant asserting error, Mother bears the burden of establishing there is insufficient evidence to support the adoptability finding. (In re R.C. (2008) 169 Cal.App.4th 486, 491.) 2. Additional Background In June 2024, P.L. refused to pick up nine-year-old N.S. from school. P.L. reported she was afraid of N.S. P.L. explained that N.S. had hit her in the face and back, threatened to kill her, and tried to cause a slip-and-fall accident by pouring soap on the stairs. The police had been called to the home several times due to disturbances between P.L. and N.S. N.S. initially denied harming P.L. and later stated that if she did hurt her, “it was for self- defense.” N.S.’s school counselor reported N.S. had “chased children with a knife and threatened to kill her teacher.” The counselor described N.S. as 10 very smart and articulate but noted she had a “history of lying and stealing from teachers and other children.” Shortly after the juvenile court took jurisdiction and declared N.S. a dependent, N.S. began living with her current foster parents. N.S. reported liking her new home and wished to remain with the foster parents. The foster mother reported N.S. was “so easy” and “so calm,” followed directions well, and went to bed when asked. N.S. immediately asked to call her foster parents, “mom” and “dad.” The foster mother’s only concern was that N.S. “sometimes trie[d] to watch age-inappropriate content on YouTube,” but expressed interest in adoption if reunification efforts failed. The foster parents encouraged N.S. to participate in extracurricular activities including “muay thai” and gymnastics and provided her with art supplies. The foster parents reported N.S. was current on all her medical exams and immunizations and would be getting glasses and seeing a cardiologist. The Court Appointed Special Advocate (Advocate) met with N.S. approximately once per month and described her as having good manners, being well behaved and “a very easy child to spend time with.” The Advocate also reported that N.S. began exhibiting “several concerning behaviors” after communicating with various extended maternal relatives and N.S. expressed she did not wish to continue contact with them. The Advocate noted N.S. had expressed suicidal ideation to peers at school and a safety plan was put in place. In its August 2025 report, the Agency stated N.S. was developmentally on target, “extremely talkative, smart, mature, and direct,” and “able to communicate what she wants and does not want.” N.S. continued to receive therapeutic services and the therapist reported N.S. was “doing better” with her dysregulation and working on expressing her emotions to her foster 11 parents. The Agency further reported that N.S. was “thriving” with the foster family as they were able to meet her needs and provide safety. N.S. was doing well in school and was involved in various extracurricular activities such as summer camp and agricultural camp. N.S. was clear she did not want to reunify with her parents and did not want any visits with them or other relatives. The foster parents reaffirmed their interest in adoption if reunification failed. In November of 2025, the Agency met with N.S. and the foster parents. The foster parents continued to express their desire to adopt N.S., and N.S. maintained she did not wish to have contact with her parents and wanted to be adopted by her foster parents. The foster parents stated they remained “committed to providing permanency for [N.S.] despite any ongoing concerning behaviors.” In January 2026, the Agency prepared a report for the section 366.26 hearing. Therein, the Agency reported N.S. was “developing appropriately and hitting all developmental milestones.” N.S. excelled academically and made the Honor Roll in the first quarter of sixth grade but sometimes chose not to submit simple assignments. The foster parents and N.S. noted that she struggled with math and benefitted from tutoring. The foster parents described N.S. as “incredibly sweet” and “special” but noted concerning behaviors such as “lying, manipulating, stealing, and presenting with a lack of remorse.” N.S. had reportedly stolen gift cards, clothing, a phone, and lied about showering and brushing her teeth. When confronted, N.S. would either lie, have a meltdown, threaten self-harm, or would go to her room to calm down emerging with unusual behavior “often pretending to be a cat.” The foster parents also reported they did not allow N.S. to use the Internet because she had previously looked up explicit material. 12  At the time of the report, the Agency had not yet received the official results of N.S.’s psychological evaluation, but the doctor shared that N.S. scored exceptionally high in verbal and written subjects and was diagnosed with attention deficit hyperactivity disorder (ADHD) and attachment disruptions. As a result, the doctor referred N.S. for a psychoeducational evaluation and for a possible individualized education plan. The doctor also explained that N.S.’s behavior “could be a result of her attachment disruptions.” In February 2026, the foster parents became an approved Therapeutic Foster Care home which consists of “consultations between the caregiver and a licensed therapist in order to address any concerning behaviors and provide additional support to both [N.S.] and the caregivers.” Ahead of the section 366.26 hearing, a social worker asked N.S. about adoption, and N.S. stated she wished to be adopted by the foster parents and felt very good about it. At the March 2026 section 366.26 hearing, the court admitted, without objection, four Agency reports and addenda. Mother did not submit any evidence and neither parent attended the hearing. The Agency and N.S.’s counsel asked the court to find N.S. was specifically adoptable, that no exceptions applied, and to terminate parental rights. Mother’s counsel opposed the termination of parental rights and requested a less permanent plan of legal guardianship. The court stated it had “taken all of the evidence in this case” including arguments from the attorneys and the Agency’s reports. The court found by clear and convincing evidence that N.S. was “generally adoptable based on her age and personality” and “specifically adoptable by her current caregivers.” With respect to the parent-child bond exception, the court found that Mother had not maintained regular visitation 13 or contact even before the dependency case began, N.S. did not have a positive emotional attachment to Mother as N.S. was adamant she did not wish to have a relationship with Mother, and the termination of parental rights would not be detrimental to N.S. as it was aligned with her wishes. Thus, “based on everything [it was] presented,” the court terminated parental rights. 3. Analysis Mother argues the evidence was insufficient to support the juvenile court’s finding that N.S. was generally and specifically adoptable. Mother questions whether the juvenile court considered all the evidence including N.S.’s actual age and her “extreme and unsafe behaviors.” She further challenges the court’s findings given the pending psychological evaluations. A finding of general adoptability focuses on the child while a finding of specific adoptability focuses on the particular caregiver willing to adopt. (In re J.W. (2018) 26 Cal.App.5th 263, 267 (J.W.).) An adoptability finding based solely on the fact that a specific family is willing to adopt can be a legal impediment depending on whether the prospective adoptive parents can meet the child’s needs. (Id. at p. 268.) The record contains ample evidence to support the court’s finding that N.S. was generally and specifically adoptable. It is undisputed that N.S. has many positive attributes and that her foster parents are meeting her needs and are committed to providing a stable home. By all accounts, N.S. has adjusted well to her new home and school, made the Honor Roll, enjoys a variety of extracurricular activities and is consistently described as well behaved. N.S. is healthy, has no developmental problems, is academically excelling, and has improved management of her emotional dysregulation. 14  The juvenile court reasonably concluded that N.S. is generally and specifically likely to be adopted within a reasonable time by her prospective adoptive parents. (J.W., supra, 26 Cal.App.5th at p. 268.) “ ‘[I]t is only common sense that when there is a prospective adoptive home in which the child is already living, and the only indications are that, if matters continue, the child will be adopted into that home, adoptability is established. . . .’ ” (Ibid., quoting In re K.B. (2009) 173 Cal.App.4th 1275, 1293.) Moreover, contrary to Mother’s assertion, the juvenile court explicitly stated it considered N.S.’s age, personality, and the Agency’s reports. Thus, Mother’s speculation as to what the unsubmitted psychological reports may reveal does not preclude a finding that N.S. is likely to be adopted. (J.W., supra, at p. 268.) We also reject Mother’s suggestion that N.S, a child with ADHD, attachment disruption, and other behavioral concerns is unadoptable. As the court in J.W. explained, “[v]ery few children in the dependency system are without problems. To deny J.W. the chance to permanently become a member of the family that loves him and that he loves, simply because he has special needs, would derail the entire concept of permanent planning. The evidence shows that the placement is working and that J.W. is adoptable.” (J.W., supra, 26 Cal.App.5th at p. 268–269.) Similarly here, the evidence reflects N.S.’s history of behavioral concerns and her foster parent’s ongoing efforts to address and support her needs. Thus, the evidence shows that the placement is working and that N.S. is adoptable. In sum, substantial evidence supports the trial court’s findings, that continuing the parent-child relationship does not outweigh the permanence and stability of an adoptive placement. (J.W., supra, 26 Cal.App.5th at p. 269.) 15  DISPOSITION The order terminating parental rights and selecting adoption as the permanent plan is affirmed. RUBIN, J. WE CONCUR: BUCHANAN, Acting P. J. CASTILLO, J. 16