as: 142 Cal.App.4th 988)
re Adoption of Hannah S.Cal.App.
of Appeal, Third District, California.
OF HANNAH S., a Minor.
S., Plaintiff and Appellant,
S., Defendant and Respondent.
Jay-Allen Eisen Law Corporation, Jay-Allen Eisen, C. Athena Roussos;
Jon D. Lydell for Plaintiff and Appellant.
S., in pro. per., for Defendant and Respondent.
Kristina S., mother of the minor, appeals from the orders
of the superior court denying her petition to terminate the
parental rights of Walter S. (father) and free the minor
for adoption by the stepfather.
appellant contends that this court should apply the existing Indian
family doctrine to permit her to avoid the substantive requirements
of the Indian Child Welfare Act (ICWA).
Appellant further contends that the “good
exception in ICWA should apply to permit termination of the
father's parental rights.
We requested supplemental briefing on several questions relating to application
of the provisions of ICWA. After consideration of those issues,
we conclude reversal is required.
August 2003, appellant filed an application to terminate the father's
parental rights in conjunction with the stepfather's petition to adopt
The petition to adopt the minor stated that the minor
had no Indian ancestry.
The father was in custody.
In October 2003, the Confederated Tribes of the Grand Ronde
Community of Oregon (CTGR) moved to intervene because the minor
was an enrolled member of the federally recognized tribe.
The court granted the motion.
to the probation report on stepparent adoption, appellant had custody
of the minor and the father had failed to provide
for the minor for over four years.
The father did not consent to the adoption.
The report recommended terminating the father's parental rights and granting
the petition for adoption.
A subsequent investigation report stated that appellant was involved with
the father when appellant was 16 and the father was
in his 30s.
According to appellant, the father was abusive and controlling and
she left him, when the minor was born, to live
with the maternal grandmother.
The relationship continued over the next year and a half
until the father was arrested in December 1999 and eventually
convicted of violent crimes against appellant, including kidnapping and terrorist
The father is currently serving a 27-year prison term as
a result of these convictions.
Appellant had some contact with the paternal aunt in 2000
and the paternal grandmother in 2002.
The investigation report stated the father had had minimal contact
with the minor and had provided no support for her.
The report concluded that termination of the father's parental rights
was in the minor's best interests.
filed an amended petition in March 2004, alleging that the
father had abandoned the minor and had been convicted of
a felony demonstrating his unfitness to have custody.
filed a pretrial statement which indicated that the father had
applied for tribal membership for the minor in November 1999
and that the minor was enrolled in April 2000.
The tribe had an **608
interest in preserving the minor's heritage but did not object
to termination of the father's parental rights if appellant provided
assurances that she would maintain the minor's cultural connection to
the tribe. In October 2004, CTGR and appellant stipulated to
father moved to dismiss on the ground that appellant had
failed to show compliance with the substantive provisions of ICWA.
Specifically, the father argued, appellant had not shown active efforts
had been made to prevent the breakup of the Indian
family or that evidence beyond a reasonable doubt, including testimony
of a qualified expert witness, supported a determination that the
continued custody of the child by the father was likely
to result in serious emotional or physical damage to the
opposed the motion, contending that the existing Indian family doctrine
constituted an exception to the application of the substantive provisions
of ICWA and that the doctrine should apply in this
appellant argued that the requirements of ICWA had been met
since there was no family to preserve and appellant could
do little in any case to rehabilitate the father, who
was in state prison.
Further, therapist Sharon Sloper, an Indian expert, had stated that
introducing the minor to the father would be damaging to
her except under the most controlled conditions.
trial, Sloper testified as an expert within the meaning of
ICWA. Based upon her interview with the six-year-old minor, she
stated that the minor had no recollection of the time
when the father was involved in her life and viewed
her stepfather as her father.
Sloper observed the minor interact in a positive way with
Sloper believed that under the right circumstances, e.g., in counseling,
it would be appropriate and important for the minor to
learn her biological father's identity.
Sloper opined it was in the minor's best interests to
be adopted by her stepfather.
It was her belief that for the father to form
a bond with the minor it would be necessary to
have consistency and stability in the relationship.
However, informing the minor of the existence of her biological
father, followed by frequent and consistent contact with him at
this age, would be confusing for the minor and could
cause emotional harm depending on the minor's reaction.
The expert saw no way the necessary consistent parental contact
to develop a bond could occur while the father was
incarcerated, and sporadic contact would be confusing for the minor.
Further, the expert opined that visiting a parent in prison
might be good to maintain a relationship, but not to
Even if contact with the father was being initiated carefully,
he would not be functioning as a father and the
expert still believed that termination of parental rights was in
the minor's best interests.
testified about her relationship with the father prior to and
following the minor's birth.
Appellant stated she separated from the father just before the
minor was born, after they were served with an eviction
notice due to the father's violent behavior.
She testified she received no support from the father after
his arrest and had no contact with him thereafter except
for a letter sent from prison through his relatives, which
Appellant testified that the minor does not know the father
is her biological father and thinks that appellant's husband is
After the minor was born, appellant did travel to Oregon
to visit the father there for about a week while
he was addressing his drinking problem.
The minor did have contact with the father before he
was incarcerated and he provided some care for the minor
from time to time but **609
was often under the influence when he visited.
Appellant testified she had made no attempt to contact the
father and had not worked with the tribe or any
other entity to assist him in communicating with the minor.
She was opposed to the father having contact with the
minor by mail or email.
Appellant believed the father was violent based on his actions
toward her, and that he was a danger to the
She had not hired a *994
therapist to help the minor deal with the fact that
the man the minor believes is her father is not
her biological father.
father testified he had been in an alcohol rehabilitation plan
through the tribe in Oregon and appellant had visited him
there. He had seen the minor frequently after her birth
and felt the minor was bonded to him.
He testified he relapsed twice in 1999 and appellant made
it clear their relationship was over.
She was tired of dealing with his drinking and did
not want him around.
He agreed he had a drinking problem and had prior
felony convictions in 1984 for rape and oral copulation, and
his own family had restraining orders against him in 1996
Following his convictions of the offenses against appellant, a lifetime
domestic violence restraining order was issued prohibiting him from contacting
court issued its
statement of decision in which it rejected the existing Indian
family doctrine, following the prior decision of this court.
The court found proof beyond a reasonable doubt was lacking
to establish that appellant made active efforts to provide remedial
and rehabilitative services, or that expert testimony was presented supporting
finding beyond a reasonable doubt that continued custody of the
child by the father was likely to result in serious
emotional or physical damage.
The court reviewed the evidence, and found that appellant's testimony
was evasive at times and lacking in candor, and that
appellant actively prevented communication between the minor and the father.
The court concluded appellant's expert had not shown beyond a
reasonable doubt that continued custody of the type sought by
the father, i.e., contact by mail or email, or even
eventual visitation in prison if properly prepared, was likely to
result in serious emotional or physical damage to the minor.
The court denied the request to terminate the father's parental
noting this court has previously rejected the idea that there
should be judicially created exceptions to the provisions of ICWA,
nonetheless invites us to adopt the existing Indian family doctrine.
We decline to do so.
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, child custody proceedings which terminate
1902, 1903(1), 1911(c), 1912.)
ICWA contains provisions for notice to the tribes and specifies
findings that must be made prior to termination of parental
rights when an Indian child is involved.
long after enactment of ICWA, the Kansas Supreme Court found
the purpose of ICWA was to preserve existing Indian families
and to set standards for removal of children from an
existing Indian environment.
re Adoption of Baby Boy L.
(1982) 231 Kan. 199 [643 P.2d 168, 175] (Baby
The Kansas court held that ICWA did not apply to
an Indian child in adoption proceedings involving a non-Indian mother
where the child had never been a member of an
Indian home or culture.
Over the years, this judicially**610
created exception has become known as the “existing
Indian family doctrine.”
The doctrine has been adopted by some states and rejected
R. v. Superior Court
(1997) 59 Cal.App.4th 703, 714-715, 69 Cal.Rptr.2d 414 (Crystal
California, there is a split in the appellate districts and
the viability of the doctrine is not settled.
The Sixth Appellate District (Crystal
59 Cal.App.4th at pp. 718-724, 69 Cal.Rptr.2d 414) and divisions
of the Second (In
re Bridget R.
(1996) 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507 (Div.Three) and In
re Santos Y.
(2001) 92 Cal.App.4th 1274, 112 Cal.Rptr.2d 692 (Div.Two)) and Fourth
re Alexandria Y.
(1996) 45 Cal.App.4th 1483, 53 Cal.Rptr.2d 679 (Div.Three)) Appellate Districts
have adopted the doctrine.
The Fifth Appellate District (In
re Alicia S.
(1998) 65 Cal.App.4th 79, 76 Cal.Rptr.2d 121) and the First
Appellate District (Adoption
of Lindsay C.
(1991) 229 Cal.App.3d 404, 280 Cal.Rptr. 194 (Div.Three)) have rejected
years ago, this court addressed the question of whether ICWA
applied to a petition by a non-Indian mother to terminate
the parental rights of an Indian father to an Indian
re Crystal K.
(1990) 226 Cal.App.3d 655, 276 Cal.Rptr. 619 (Crystal
We noted that Congress had specified only two exclusions to
ICWA, i.e., custody disputes resulting from divorce proceedings between the
parents of an Indian child;
placements of Indian children as a result of juvenile delinquency
at p. 662, 276 Cal.Rptr. 619.)
In finding that ICWA applied to the termination of parental
rights proceeding being appealed, we stated:
delineated the only exclusions and judicially created exclusions cannot be
at p. 663, 276 Cal.Rptr. 619.)
the exception the trial court tried to apply, and which
was rejected by this court, was that ICWA did not
apply to intrafamily custody disputes.
226 Cal.App.3d at p. 664, 276 Cal.Rptr. 619.)
While factually distinguishing cases such as Baby
Boy L. (ibid.),
this court did endorse the broader view of the scope
of ICWA set forth in In
re Appeal in Pima County Juvenile Action
(1981) 130 Ariz. 202 [635 P.2d 187, 188], i.e., that
fundamental assumption of ICWA is that it is in the
Indian child's best interest to protect the child's relationship with
226 Cal.App.3d at p. 665, 276 Cal.Rptr. 619.)
existing Indian family doctrine, although related to the judicially created
exception advocated in Crystal
is not precisely the same.
Nonetheless, our analysis is unchanged.
The only exceptions to application of ICWA's provisions have been
specified by Congress;
creation of additional exceptions of any kind are not permitted.
After careful review of the cases decided since our opinion
we continue to agree with those courts that have decided
the existing Indian family doctrine has no place in the
application of ICWA. (In
re Alicia S., supra,
65 Cal.App.4th 79, 76 Cal.Rptr.2d 121;
of Lindsay C., supra,
229 Cal.App.3d 404, 280 Cal.Rptr. 194;
in Interest of D.A.C.
(Utah App.1997) 933 P.2d 993.)
the extent some of the decisions adopting the existing Indian
family doctrine rest upon a constitutional analysis of equal protection
or substantive due process requiring a compelling interest standard, we
agree with the analysis in In
the Interest of A.B.
(2003) 2003 N.D. 98 [663 N.W.2d 625, 636], which states:
United States Supreme Court has consistently rejected claims that laws
that treat Indians**611
as a distinct class violate equal protection.
different treatment of Indians and non-Indians under ICWA is based
on the political status of the parents and children and
the quasi-sovereign nature of the tribe.
apply the rational basis test to [the] County's substantive due
process and equal protection challenges, and we conclude ICWA is
rationally related to the protection of the integrity of American
Indian families and tribes and is rationally related to the
fulfillment of Congress's unique guardianship obligation toward Indians.”
also urges this court to apply the “good
exception of 25 United States Code section 1915(b) to avoid
the substantive evidentiary requirements of ICWA.
ICWA governs placement of Indian children.
Specifically, 25 United States Code section 1915(a) provides:
any adoptive placement of an Indian child under State law,
preference shall be given, in
the absence of good cause to the contrary,
to a placement with (1) a member of the child's
other members of the Indian child's tribe;
(3) other Indian families.”
1915(b) provides for similar preferences when an Indian child is
to be placed in foster care or a preadoptive placement.
It is apparent that the provisions of the statute apply
only to the actual placement decision when an Indian child
is placed for adoption or foster care outside the home
of one of the biological parents.
The obvious reason for this is to protect “the
rights of the Indian child as an Indian and the
rights of the Indian community and tribe in retaining its
children in its society.”
County Dept. of Children & Family Services v. Superior Court
(2004) 122 Cal.App.4th 626, 641, 19 Cal.Rptr.3d 155;
Choctaw Indian Band v. Holyfield
(1989) 490 U.S. 30, 36-37, 109 S.Ct. 1597, 104 L.Ed.2d
this case, if the court granted the termination of the
father's parental rights and the stepfather's proposed adoption, the child
would be living with her biological mother.
Accordingly, not only can the good cause exception not be
used to avoid the other substantive provisions of ICWA, it
does not even apply to the placement here.
consideration of the initial briefing in the case, this court
requested supplemental briefing on several questions related to the application
of the provisions of ICWA in the circumstances of this
We shall now turn to a discussion of these additional
the trial court apply the proper standard of proof in
determining whether active efforts to provide services designed to prevent
the breakup of an Indian family had been made within
the meaning of Title 25 United States Code section 1912(d)
re Michael G.
(1998) 63 Cal.App.4th 700, 710-711, 74 Cal.Rptr.2d 642?
its ruling, the court found “that
evidence beyond a reasonable doubt is lacking to prove”
appellant made active efforts to prevent the breakup of the
25 United States Code section 1912(d) simply states that the
party seeking to terminate parental rights “shall
satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family and that these efforts have
California Rules of Court, rule 1439(i)(4) is **612
to the same effect. Reasonable doubt is not the standard
to assess active efforts.
re Michael G.
(1998) 63 Cal.App.4th 700, 710-711, 74 Cal.Rptr.2d 642.)
The proper standard is clear and convincing.
at p. 712, 74 Cal.Rptr.2d 642.)
The court did not apply the proper standard when assessing
whether appellant had complied with the requirement of ICWA to
show active efforts.
constitutes such active efforts under the circumstances of this case?
efforts are essentially equivalent to reasonable efforts to provide or
offer reunification services in a non-ICWA case and must likewise
be tailored to the circumstances of the case.
re Michael G., supra,
63 Cal.App.4th at pp. 713-714, 74 Cal.Rptr.2d 642.)
Moreover, it has been held that denial of services in
an agency removal case is not inconsistent with the active
efforts requirement if it is clear that past efforts have
met with no success.
V. v. Superior Court
(2000) 81 Cal.App.4th 1009, 1016, 97 Cal.Rptr.2d 303.)
There is no reason an individual should be held to
a higher standard than an agency which has superior resources.
this court explained that active efforts “must
be directed at remedying the basis for the parental termination
in this case, the allegations of abandonment and felony convictions
resulting in a prison term.
re Crystal K., supra,
226 Cal.App.3d at p. 667, 276 Cal.Rptr. 619.) We further
explained that the Federal Guidelines define “
of the Indian family’
as circumstances in which the Indian parent is “unable
or unwilling to raise the child in a healthy manner
emotionally or physically.”
also 44 Fed.Reg. 67592 (Nov. 26, 1979) Guideline D.2., Commentary.)
Active efforts are intended to “attempt
to preserve the parent-child relationship.”
re Appeal in Pima County Juvenile Action, supra,
635 P.2d at p. 193.)
this case, after the minor was born and the parents
separated due to the father's violence, appellant continued to have
contact with the father and visited him in Oregon when
he was in a tribal treatment program.
It was not until he relapsed twice and committed serious
crimes against her that she gave up on him.
The father's subsequent violent acts toward appellant and resulting incarceration
demonstrated his inability to provide an emotionally and physically healthy
parent-child relationship with the minor.
Appellant has neither the ability nor the resources to provide
him culturally appropriate services now that he is in state
prison, nor is she required by ICWA to place herself
or the minor at risk of physical or emotional harm
by having direct contact with him.
It is true that, after the father was incarcerated, appellant
allowed the minor to believe another man was her father
and prevented ongoing contact with her biological father;
appellant did not prevent the father from building on his
relationship with the minor until his alcoholism and violent tendencies
toward her became too much for her to deal with,
and appellant has more recently begun to foster a relationship
between the minor and the tribe.
Appellant cannot be expected to be responsible for further attempts
to alleviate the father's alcohol abuse and violence or to
foster a parent-child relationship between the minor and the father
when the father, despite appellant's prior support and understanding, perpetrated
a vicious attack upon her which resulted in his incarceration
and a lifetime restraining order.
Appellant argues that the facts here demonstrate why ICWA should
not apply in this case.
Appellant misunderstands the state of the law.
The minor is an Indian child and an enrolled member
The issue here, as in all such cases, is what
efforts, under the facts of the case, must be made
to comply with the substantive provisions of ICWA.
appears from the statement of decision that the trial court
relied solely upon expert testimony, rather than all the evidence
before the court.
If so, did the court properly assess the evidence within
the meaning of Title 25 United States Code section 1912(f)
and the Federal Guidelines (44 Fed.Reg. 67593 (Nov. 26, 1979))?
termination of parental rights may be ordered ...
in the absence of a determination, supported by evidence beyond
a reasonable doubt, including
testimony of qualified expert witnesses,
that the continued custody of the child by the parent
is likely to result in serious emotional or physical damage
to the child.”
is clear from the words of the statute that the
expert's testimony is only a part of the evidence supporting
According to the Federal Guidelines, Congress was primarily concerned with
avoiding cultural bias in termination of parental rights of Indian
Fed.Reg. 67593, supra,
Guideline D.3., Commentary.)
The evidence of the expert is to assist the court
in determining the risk of damage to the child and
may be useful in placing the behavioral patterns of the
parents in a cultural context if necessary.
Fed.Reg. 67593, supra,
Guideline D.4., Commentary.)
the statement of decision, the court appears to rely solely
on the expert's testimony, rather than on all the evidence
This evidence includes appellant's and the father's family's concern for
the father's extensive history of violence;
child's current stability;
father's testimony, discounting his own responsibility for the crimes for
which he is in prison and for an earlier assault
on appellant, and demonstrating his manipulative nature;
tribe's rather unusual agreement not to oppose termination of parental
efforts to maintain the minor's cultural connection to her tribe;
the expert's testimony about the effect on the minor of
introducing her to the father and maintaining a parent-child relationship
According to the expert, even if the introduction could be
done over a period of time and could permit ongoing
contact without severe trauma, the contact would have to be
closely monitored and the father would not be able to
either act as a parent or develop a parental bond
with the minor.
Additionally, the expert testified that visiting an incarcerated parent with
whom the child had no prior bond could be harmful
to the child.FN1
note that the court was apparently influenced to some degree
by the minimal nature of the continued contact sought by
Nothing prevents the parties from entering into a postadoption contract
agreement to allow such minimal contact while providing the security
of adoption if it is in the minor's best interests.
the court failed to apply the proper standard in determining
whether active efforts had been made and did not consider
all the evidence when determining whether continued custody would damage
the minor, reversal is required.
orders of the court are reversed.
Appellant is awarded her costs on appeal.
Rules of Court, rule 27(a)(1).)
P.J., and CANTIL-SAKAUYE, J.
re Adoption of Hannah S.
Cal.App.4th 988, 48 Cal.Rptr.3d 605, 06 Cal. Daily Op. Serv. 8462, 2006
Daily Journal D.A.R. 12,146