|
(Cite
as: 167 Cal.App.4th 1292, 84 Cal.Rptr.3d
841) |
Court
of Appeal, Fifth District, California.
In
re A.A. et al., Persons Coming Under the Juvenile Court Law.
Tulare
County Health and Human Services Agency, Plaintiff and Respondent,
v.
V.P.
et al., Defendants and Appellants.
No.
F055097.
Oct.
28, 2008.
As
Modified on Denial of Rehearing Nov. 21, 2008.
**846
Caroline Todd, Berkeley, under appointment by the Court of Appeal, for Defendant
and Appellant, V.P.
Law
Offices of Joanne W. Newton and Joanne W. Newton, San Diego, for Defendant and
Appellant, Tule River Tribe.
Kathleen
Bales-Lange, County Counsel, and Amy-Marie Costa, Deputy County Counsel, for
Plaintiff and Respondent.
*1297
OPINION
WISEMAN,
Acting P.J.
This
appeal involves two pre-school age children whom a superior court found
adoptable and freed for adoption. (Welf. & Inst.Code, ? 366.26.)
FN1
Reaching this decision proved elusive for approximately 18 months. This was due
in part to the fact the children were Indian, and the *1298
court proceeded according to the Indian Child Welfare Act (ICWA; 25 U.S.C. ?
1901 et seq.). Respondent Tulare County Health and Human Services Agency
(agency) placed the children with extended family members for the purposes of
adoption but, within a matter of months, the relative caregivers asked the
agency to remove the children from their care. The agency was able to
successfully move the children and place them in an Indian foster home
specifically interested in adoption. However, eight months later and on the eve
of a new section 366.26 hearing for the children, their former relative
caregivers, prompted by the Indian tribe, asked to be reconsidered for adoptive
placement. By that point, however, moving the children yet again would have been
detrimental because each child suffered from an attachment
disorder.
FN1.
All statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
**847
Their mother, who is an enrolled member of the Tule River Tribe (Tribe), and the
Tribe appeal from the termination of parental rights on numerous grounds.
Joining in one another's briefs, appellants contend there was insufficient
evidence to support the court's adoptability and active-efforts findings and
that the court erred by either: not applying a new statutory exception to
termination for Indian children or not ordering the children's change in
placement.
California
recently revised and recast portions of the code that address Indian child
custody proceedings by codifying into state law various provisions of ICWA, the
Bureau of Indian Affairs Guidelines for State Courts (U.S. Dept. of the
Interior, Bureau of Indian Affairs, Guidelines for State Courts; Indian Child
Custody Proceedings, 44 Fed.Reg. 67584 (1979) (Guidelines)), and the state's
Rules of Court. (Stats.2006, ch. 838.) Since several of appellants' contentions
raise questions of first impression about these recently enacted amendments, we
publish our decision. Having reviewed the law and the record in this case, we
affirm.
PROCEDURAL
AND FACTUAL HISTORIES
In
July 2005, when the children in this appeal were one and two years of age, their
mother gave birth to a drug-exposed child. Paramedics arrived at the mother's
home to find the newborn in the mother's pants with the umbilical cord still
attached. Brought to a hospital to separate the baby from the mother, both the
mother and the newborn tested positive for methamphetamine. Although the mother
knew or reasonably should have known she was pregnant, she continued to use
drugs and was unable to provide regular care for the children. (? 300, subd.
(b).) The father was incarcerated, awaiting trial on a murder charge, and could
not arrange adequate care for them. (? 300, subd. (g).)
*1299
At an August 2005 detention hearing, the Tulare County Superior Court found that
ICWA applied based on the mother's membership in the Tribe. Shortly thereafter,
the Tribe's records specialist verified that neither the children nor their
newborn sister were enrolled members of the Tribe; however, their mother was an
enrolled member. The Tribe's ICWA specialist attended the hearings in this case,
commencing at a September 6, 2005, hearing in which the trial court exercised
its dependency jurisdiction over the children.
Initially,
the social worker assigned to the case was unaware of any available Indian
foster homes in the area. Also, relatives whom the agency first considered for
placement withdrew their request. Consequently, the agency placed the newborn
with one non-Indian foster family qualified to provide for drug-exposed infants
and her older sisters, the children here, with another non-Indian foster home.
Unfortunately, less than a month after their detention, the children were placed
in a second foster home after one of them suffered severe burns in the first
foster home. As the dispositional hearing approached, the mother provided two
additional names of family members whom she wished the agency to consider for
placement. Her first choice was an extended family member whom she believed was
a tribal member as well as a foster parent. The agency contacted the relative,
who was an enrolled member of the Tribe, and his wife in August 2005, inquiring
if they could take all three siblings into the relative's home. Although the
couple, Mr. and Mrs. G., were foster parents, they were only licensed to accept
two children. The G.s would need an exemption or a new **848
license to receive all three sisters. FN2
It is undisputed on appeal that the other relative whom the mother suggested did
not meet placement requirements.
FN2.
The standards used to determine the suitability of a relative placement are the
same as those set forth in the regulations for licensing foster family homes.
(?? 309, subd. (d)(1) & 361.3, subd. (a)(8).)
Later
in September 2005, the court adjudged the children and their newborn sister
juvenile dependents and removed them from parental custody.FN3
In the process, the court made two ICWA-related findings that (1) active efforts
were made to provide remedial services and rehabilitative programs designed to
prevent the breakup of the Indian family and that these efforts proved
unsuccessful; and (2) the continued parental custody of the children and their
newborn sister was likely to result in serious emotional or physical damage to
them. (? 361.7.) Within a matter of days, the agency placed the sibling with the
G.s (relative caregivers). The children meanwhile remained in their non-Indian
foster home where they did well and were happy and healthy.
FN3.
Since two of the three sisters share the same initials, we will refer to the two
older sisters who are the subject of this appeal as ?the children? and their
younger sister as ?the sibling.?
*1300
Over the next six months, the mother did not comply with any component of her
reunification case plan. It appeared she might still be abusing methamphetamine.
She was a ?no show? for more than 20 random drug tests. She also canceled or
never attended 20 out of 25 scheduled visits with the children. Meanwhile, the
father was incarcerated in a unit where no services were available to him and
contact visits were not permitted. Under these circumstances, as well as the
fact there was no substantial probability that either parent would reunify
within another six months and all three sisters were under the age of three when
they were removed (? 361.5, subd. (a)), the agency in a March 2006 status review
report recommended the court terminate reunification services and set a section
366.26 hearing to select and implement permanent plans.
The
agency in the meantime conducted an adoption assessment for all three sisters, a
copy of which it attached to its status review report. It found each was
adoptable due to her young age, ?minimal to no issues,? and the commitment of
one caregiver to adopt. The G.s were committed to adopting the sibling and were
willing to consider adopting all three sisters. According to the assessment,
consideration was being given to placing the children, who remained in a
non-Indian foster home, in the G.s' home depending on space being
available.
As
the status review hearing approached, the Tribe, through its Tribal Chairman,
wrote the court asking to intervene in the dependency and to recommend that the
court return the children to the mother's care and order guardianship, rather
than adoption, for the sibling. On the date originally set for the six-month
review, the court advised the Tribe's ICWA coordinator it could not accept the
Tribe's ex parte documentation and that the Tribe should file a motion to
intervene. The court also ordered the agency to provide narratives to all
counsel and the Tribe. It then continued the hearing.
The
Tribe consequently filed a motion to intervene, in which it also petitioned to
invalidate (? 224, subd. (e)) any orders which were not in compliance with its
resolution.FN4
The resolution, which was attached**849
to the Tribe's motion, declared that the Tribal Council ?traditionally opposed
legal adoption of our Native children,? recommended guardianship for the
sibling, and preferred placing all three sisters with the G.s, the relative
caregiver for the sibling. According to a March 2006 minute order, the court was
inclined to grant the motion to intervene, but otherwise would deny all motions
without prejudice. No reporter's transcript of this hearing was transcribed and
*1301
filed with the appellate record. It also granted a request by the Tribe's
attorney for a short continuance to prepare for the status review hearing.
According to the appellate record, the Tribe did not subsequently file a new
petition to invalidate.
FN4.
Any Indian child, Indian child's tribe, or parent from whose custody the child
has been removed, may petition the court to invalidate an action in an Indian
child custody proceeding for foster care placement if the action violated
certain procedural and substantial ICWA requirements. (25 U.S.C. ?? 1911, 1912,
& 1913; Welf. & Inst.Code, ? 224, subd. (e).)
Eventually,
the court conducted its status review in April 2006. Again, a reporter's
transcript of the hearing has not been transcribed and filed with the record. On
the issue of reunification services, the court found reasonable services had
been offered to both parents, and they failed to participate and make
substantial progress. In addition, because there was no substantial probability
that either parent would reunify within another six months and all three sisters
were under the age of three when they were removed (? 361.5, subd. (a)), the
court terminated reunification services. The court also set a section 366.26
hearing to select and implement permanent plans and gave the parents notice of
their writ remedy. (? 366.26, subd. (l
); Cal. Rules of Court, rule 8.450.)
The
minute order for the April 2006 hearing also stated:
?As
to the Tribe's request to place [the children] in an ICWA (Indian Child Welfare
Act) home: The Agency is to follow the law pertaining to ICWA and if a change in
placement is required, the Agency is to follow the law. Agency is to advise the
court as to the status of placement at the next hearing.?
In
its report for the section 366.26 hearing scheduled for August 2006, the Agency
addressed the status of the children's placement. Their non-Indian foster mother
was hospitalized in June 2006 for a brain aneurysm which created a need to
change the children's placement. The agency solicited family names for placement
purposes from the relative caregivers for the sibling and from the Tribe's ICWA
coordinator. Eight relatives were separately assessed and were found, for
different reasons, not to meet licensing requirements. The ICWA coordinator had
not provided the agency with the names of any individuals or families who could
meet the licensing requirements. As a result, the agency placed the children in
another non-Indian foster home until a permanent placement could be identified.
Although the department believed the children were adoptable, it requested more
time to locate prospective adoptive parents who were relatives or otherwise met
ICWA placement preferences.
At
the same time, the agency reported the children's sibling was adoptable and
identified the G.s as the sibling's prospective adoptive parents. The agency
noted the relative caregivers, who met ICWA placement preferences, were
committed to raising the sibling. In urging the court to terminate parental
rights for the sibling, the social worker reported termination would not
interfere with the child's relationship to her older sisters because she
**850
was not raised with them and they had only begun to become
acquainted.
*1302
Again, the record does not contain a reporter's transcript of the first section
366.26 hearing. According to a minute order for the August 2006 hearing, the
court continued the matter in the sibling's case for ?an ICWA Affidavit.? With
respect to the children, the court found termination would not be detrimental,
but no adoptive parent had been identified and the children were difficult to
place because they were part of a sibling group that should stay together. The
court identified adoption as the permanent plan goal and directed the agency to
make efforts to locate an appropriate adoptive family. It continued the
children's section 366.26 hearing until January 2007.
In
the interim, specifically late September 2006, the agency placed the children,
along with their sibling, in the home of the G.s toward a goal of adoption. At
some point, these relative caregivers applied with licensing to have all three
children placed in their home. When that application was approved, the relative
caregivers agreed to have the children move into their home. Meanwhile, the
court apparently terminated parental rights as to the sibling and later still
granted an adoption petition by the relative caregivers.
Soon
after this fourth placement change for the children, the agency requested the
children be assessed to determine if they had an attachment disorder. Although
the children shared a close relationship, they also fought and scratched one
another. A clinical psychologist with Synchrony of Visalia, Inc. (Synchrony)
apparently found the children had attachment-disorder issues and developmental
delays, particularly in terms of communication. In turn, referrals were made to
Central Valley Regional Center for a developmental evaluation and a play
therapist. The purpose of play therapy was to help determine why the children
fought and to understand the nature of their communication delays. The play
therapist would then make referrals for other services as
appropriate.
Regrettably,
the relative caregivers decided in late November 2006 not to pursue adoption of
the children. The agency reported the children's developmental and emotional
needs were beyond the relative caregivers' capabilities. Nonetheless, the
relative caregivers were committed to providing the children with a home and
therapeutic services until a prospective adoptive family could be identified.
The relative caregivers were then in the process of adopting the
sibling.
The
children's social worker believed they might be adoptable again, after services
were in place for at least six months and assuming they exhibited progress in
terms of speech, language, interpersonal skills, and other developmental tasks.
In the meantime, the agency recommended the court select long-term foster care
as the permanent plan for the children until a prospective adoptive family could
be identified.
*1303
Although the continued section 366.26 hearing for the children in January 2007
was reported, no reporter's transcript was transcribed and filed with the
appellate record. According to a minute order from the January 2007 hearing, the
court found the children were not adoptable ?[b]ased on behavioral issues and
sibling group factors.? The court identified the children's permanent plan as a
planned permanent living arrangement with the relative caregivers along with a
goal of adoption. The court also granted the Tribe's request to
intervene.
Four
months later, the agency placed the children in a prospective adoptive home
which met ICWA placement preferences.**851
Although the Tribe had been unable to provide the names of eligible tribal
families for placement purposes, the agency identified what it described as an
ICWA-eligible foster family who wished to adopt the children. As the record
would later reveal, one of the foster parents was a registered member of the
Cherokee Nation. After transition visits in April, the agency moved the children
from the home of their relative caregivers to that of the current caregivers in
mid-May 2007.
The
current caregivers were aware of and understood the neglect the children had
suffered, as well as the multiple placements they endured, both of which
contributed to the children's behavioral issues. The agency also reported that
the former relative caregivers obtained educational resources for the children,
gave them a safe and stable home, and helped them improve their age-appropriate
developmental skills, until the new prospective adoptive family could be
located. The agency recommended that the court set a new section 366.26 hearing
to establish the permanent plan of adoption for the children.
The
court in turn followed the agency's recommendation and set a new section 366.26
hearing for the children. Although the mother filed a notice of intent to file a
writ petition challenging the setting order, she filed an inadequate petition
which this court dismissed. (Case No. F053413; V
[.P.] v. Superior Court.)
In
preparation for this third section 366.26 hearing, the agency submitted a
written assessment of the children's adoptability as well as a preliminary
assessment of their current caregivers' eligibility and commitment to adopt.
According to the agency's analysis, the children were likely to be adopted
because they were young and, although they still had emotional and behavioral
problems, their current caregivers had not wavered from their commitment to
raise the children as their own. The agency also mentioned that one of the
current caregivers was a registered member of the Cherokee Nation and ?meets
ICWA eligibility.? Further noting the sibling had been adopted by *1304
the relative caregivers, the agency added that both families remained in contact
in the interests of maintaining a relationship and their common American Indian
ancestry.
In
her form ?ACKNOWLEDGMENT OF RECEIPT? of notice for the section 366.26 hearing,
the mother checked a box indicating she did not agree with the agency's
recommendation. Although she also checked a box on the form indicating her
interest in being present at the hearing, she was absent for both the
evidentiary hearing and the further hearing at which the court announced its
decision.
On
the November 2007 date set for the section 366.26 hearing, the matter needed to
be continued because the father, who by then was incarcerated in state prison,
had not been transported for the hearing. Counsel and the Tribe's ICWA
coordinator also represented that the former relative caregivers wished to be
reconsidered for placement. The court remarked that these relatives should
contact the social worker and in turn directed the agency to evaluate the
situation as well as submit a follow-up memo regarding placement for the
continued hearing date.
In
its December 2007 follow-up memo, the agency recommended against changing the
children's placement once more.
?The
reason the [children] were moved was at the request of [Mr. and Mrs. G.].
Several times between 02/
?The
current caretakers had transition visits prior to the placement of the
[children], and accepted the [children] with the commitment to the children's
long term care. The current caretakers meet ICWA requirements and remain very
much committed to the permanency of raising the children as their own. This
writer is not recommending a change in placement and does not support a change
in placement.
*1305
?In this writer's professional opinion, moving the children would exacerbate
their attachment disorder issues. They are currently in their fifth placement
and another move would be emotionally harmful to them.
?The
children continue to receive therapeutic services from [Synchrony] and their
therapist supports the children remaining with their current caretakers. A copy
of their statement is attached.?
The
statement from Synchrony included the following:
?As
you know, [the children] were first seen in our offices ... on November 2006....
The results were that [the second oldest child] was given the diagnosis of
Reactive Attachment Disorder (RAD) and [the oldest child] was also given the
diagnosis of being at risk for an Attachment Disorder (Anxious
Attachment).
?Both
[children] began treatment at [Synchrony] on 8/
?In
cases of RAD, if not intervened upon effectively the condition follows a
continuing course. At this point it is recommended that in addition to both
[children] continuing to receive mental health services that every effort is
made to keep their home environment consistent. Further, children with RAD,
including [these children] required caretakers who are loving, accepting of the
girls' current level of functioning, are responsive to their special needs, do
not engage in control battles, and who provide appropriate supervision and
discipline instead of punishment. [The current caregivers] have demonstrated
they are consistently providing this type of stable home environment. [The
current caregivers] have further demonstrated their dedication to these girls
and motivation to learn by regularly attending**853
treatment sessions and engaging in parental education about how to care for RAD
children.
?It
is recommended that [the children] remain in their current placement (placed as
of 5/
Also
attached to the follow-up memo was an ?Indian Child Welfare Affidavit? from ICWA
expert Ricardo Carrillo, Ph.D. In the summary and recommendation portion of his
affidavit, Dr. Carrillo offered his opinion that the continued custody of the
children by their biological parents was likely to result in serious permanent
emotional or physical damage to the children. (25 U.S.C. ? 1912, subds. (e)
& (f); see also Welf. & Inst.Code, ? 361.7, subd. (c).) Dr. Carrillo
added:
?[The
father] is incarcerated in state prison and [the mother] is homeless and cannot
be found. She may be considered a successful failure at treatment and services
offered. She has lost custody of four children to date, has failed to comply or
successfully engage in drug or mental health treatment dating back to October of
1997. It is the recommendation of this evaluator that the children be
permanently placed in a safe and secure home and not moved from that home. The
traumatic symptoms have the possibility of resolving with natural development
and a safe and secure attachment from the caretakers.?
Meanwhile,
the former relative caregivers and the ICWA coordinator submitted letters to the
court favoring change in placement. One of the relative caregivers even emailed
the court. Since none of these documents were offered, let alone admitted into
evidence, we do not detail their contents here.
Eventually,
the court conducted an evidentiary section 366.26 hearing on January 8, 2008.
The day before the hearing, the ICWA coordinator submitted the declaration of
Mr. G., one of the former relative caregivers. The agency also submitted another
updated report emphasizing its position that the court should select a permanent
plan of adoption for the children.
In
his declaration, which the court received into evidence, Mr. G.
explained:
?5.
I am related to the [children] as their first cousin twice removed. My paternal
aunt, who died this year, was the minors' great-grandmother.
?6.
When we were initially contacted by the agency as a placement option, it was in
August 2005, and we were asked if we could take all three siblings, ... into our
home. Because we were only licensed to take two children into our foster home,
only [the sibling] was initially placed with us. When our application to have
three children placed in our home was approved, we agreed to have [the children]
move into our home. [The children] were placed with us on or about September 21,
2006.
*1307
?7. After securing services to assist [the children] with behavioral and
**854
emotional issues, we planned to adopt all three of the siblings. We had also
been planning our move to South Dakota for some time prior to their placement
with us and intended to move after our son's wedding on June 9, 2007. When the
[Tribe] and the girls' family learned of our intention to move to South Dakota,
they contacted us and let us know that they were upset and concerned about the
move. The [Tribe's ICWA Coordinator] let us know that the Tribe would oppose an
adoptive placement of [the children] with us in South Dakota because the
maintenance of the girls' ties with their mother, extended family and tribal
community was in the girls' best interest and there was still hope that the
mother might reunify with [the children]. [Tribe's ICWA Coordinator] informed us
that the Tribe would agree to our adopting [the sibling] if we would relinquish
our intention to adopt [the children]. At that time, the Tribe anticipated
opening a foster care facility on its reservation and intended to have [the
children] placed there. We agreed and [the sibling] adoption was finalized in
March of 2007.
?8.
Although we were anticipating a slow transition of [the children] out of our
home, to be finalized before our move in June 2007, the girls' current foster
parent asked social worker Maria Kallai for a speedier transition, and the girls
were removed from our home on or about May 15, 2007.
?9.
Since completing our move to South Dakota, we have contacted the agency's social
worker and the current foster parents of [the children] to request sibling
contact for our adopted daughter, but they have each denied our requests.
Although the three siblings did not live together immediately after their
removal from their biological mother, they did live together in our home for
eight months and established a close sibling relationship during that time. We
believe it is in all three siblings' best interests to have contact and
visitation and would like this court to affirm its prior finding of August 1,
2006, that sibling visitation was in the children's best interest and order
contact by phone and mail for the siblings as well as visitation when we visit
California, as we intend to do regularly.
?10.
We have taken steps to promote a strong identity for our adopted daughter as an
Indian child and would do the same for [the children] if they were placed with
us. For example, in Rapid City, the Sioux San Hospital, an Indian Health
Services Provider, operates a number of culturally appropriate programs and
services for Indian children and families, such as Youth and Family Services
infant to five Head Start program, in which our adopted daughter is enrolled. We
also regularly attend pow wows, which our adopted daughter participates in as a
jingle dress dancer. I also maintain ties with the Tribe and my extended family
who live on or near the [Tribe's] Reservation.
*1308
?11. We were recently contacted by [Tribe's ICWA Coordinator] who stated that
the Tribal Council had reconsidered its prior decision to oppose placement of
[the children] with us in South Dakota in light of delays in the establishment
of the tribal foster care facility and their desire not to have the children
adopted outside of the extended family and the Tribe.
?12.
My wife and I strongly desire to have [the children] placed with us on a
permanent basis under whatever permanent**855
plan is deemed best for the children by the Tribe and the court. We believe this
placement would be in the girls' best interests because it would reunite them
with their youngest sister, to whom they grew attached while they lived with us,
as well as us, who had established a positive and loving relationship with the
children.?
In
its update report, the agency reported:
?The
purpose of this report is to emphasize to the court that the Permanent Plan of
adoption by the current foster parents remain the same.
?The
current foster parents accepted placement of the minors with the plan of
adoption.
?Although
the children have attachment disorder related issues, they have been receiving
mental health services and their foster parents have been central to and
participated in therapeutic services. The children have exhibited, albeit
slowly, improvements in their behaviors and in the attachment
process.
?The
foster parents meet ICWA eligibility requirements and the initial placement
match was made with this criterion in mind.
?The
former foster parents, [Mr. and Mrs. G.], now of Minot, South Dakota, asked the
agency in early 2007 to move the children because they, [Mr. and Mrs. G.], did
not want to wait through the adoptions process, they wanted to move in the
spring of 2007 to South Dakota, they expected that the [Tribe] would contest
their interest in adopting the children, and they did not want to battle the
[Tribe] because two of their young adult children remained in Porterville and
[Mr. and Mrs. G.] did not want those two children, who are enrolled with the
[Tribe], to experience future conflict.
?In
this writer's opinion, the children are healthy, and are attaching to their new
caretakers. The caretakers are committed to the plan of adoption and to whatever
the future holds. The current caretakers have and continue to work diligently
with the children and their mental health provider on improving the children's
emotional well-being. To move the children again would contribute *1309
to significant emotional harm to these children and would be detrimental to the
children and hurtful to the commitment by their caretakers.?
At
the start of the January 8, 2008, hearing, the court received into evidence the
agency's three reports filed in November 2007, December 2007, and January 2008,
including attachments. As previously noted, it also received Mr. G.'s
declaration into evidence. It granted as well the agency's request for judicial
notice of the entire case file.FN5
The parties further stipulated to the court's receipt into evidence of the
Indian Child Welfare Affidavit, subject to cross-examination.
FN5.
Respondent asks this court to take judicial notice of documents not contained in
this appellate record. As those documents do not appear relevant to the issues
raised on appeal, we deny the request.
The
Tribe's counsel then cross-examined the ICWA expert, Dr. Carrillo, regarding his
conclusions. Asked what was in the best interest of the children, Dr. Carrillo
testified:
?That
they be in a safe and secure environment. These children have been placed
multiple times. They have developmental difficulties. They need the secure
attachment to be **856
placed someplace safe for the long term since their parents can't take care of
them.?
In
response to further questions by the Tribe's attorney, the ICWA expert testified
he had not had any contact with the children's former relative caregivers
because that was not part of his evaluation.
?The
only opinion I render is that the children are in a foster placement right now
and how they are doing right now in that foster placement. I cannot render any
opinion about anybody else.?
The
ICWA expert added:
?No,
I cannot render an opinion about the [former relative caregivers]. I can tell
you that the children have suffered severe attachment disorders because they
have not had a consistent relationship where they can develop. They were born
drug exposed. They have nightmares. They have difficulty talking and
communicating. They are very clingy in their relationships. So whoever they are
going to be with they need to be placed somewhere on a permanent basis with
somebody who cares about them and certainly who can attend to them. I don't know
if the [former caregivers] are the people that can do that for them. I don't
know them.?
No
further evidence was submitted on the matter.
During
closing arguments, the Tribe's counsel argued that termination of parental
rights in the children's current placement was not in their best interests
because termination and adoption by the current caregivers would substantially
intervene with the children's connection to family and because the Tribe had
identified guardianship as the desired permanent plan.
*1310
The Tribe's counsel went on to argue against placement with the current
caregivers, claiming it was not the Tribe's preferred placement for the
children. The Tribe's preferred placement was with the former relative
caregivers. In the Tribe's view, the agency had not shown good cause to maintain
the children's current placement because neither the opinion of the Synchrony
staff nor the ICWA expert considered whether the children's removal for
placement specifically with the former relative caregivers would be detrimental
to them.
The
attorney for the Tribe also represented that his client acknowledged regret that
the children were removed from the former relative caregivers' home. The Tribe
also purportedly always opposed termination of parental rights for the children.
?In our way and custom, you can't terminate parental rights ever.? Counsel
further criticized the current caregivers for allegedly not demonstrating a
willingness to maintain Tribal and family relationships for the
children.
In
conclusion, the Tribe's counsel represented that the Tribe would support
termination of parental rights for the sole purpose of attempting an adoption by
the former relative caregivers if the court determined such a permanent plan
better promoted the children's best interests. Alternatively, the attorney asked
the court to consider guardianship as the culturally appropriate plan for the
children and to follow the Tribe's placement preference.
The
court then inquired of the Tribe's counsel if it was the Tribe's position, at
the time placement was made with the current caregivers, that the agency did not
comply with the ICWA placement requirements. The attorney replied, ?No, it is
not.?
Following
additional argument by counsel for the other parties, the court took the matter
under submission and continued **857
the hearing to the end of January 2008 for its decision. This led to a flurry of
activity by the agency and the Tribe to submit additional evidence for the
court's consideration, including the agency's motion to reopen the
hearing.
At
the further hearing on January 29, 2008, the court denied the motion to reopen
and announced it would not consider any evidence filed after the January 8,
2008, evidentiary hearing.FN6
The court then found the children adoptable, expressly finding that the current
caregivers were committed to adoption and the former relative caregivers were
willing to commit to whatever plan was deemed appropriate. ?[T]hus, despite the
diagnosis of *1311
reactive attachment disorder, they are adoptable.? The court also agreed with
the ICWA expert and found beyond a reasonable doubt that the children's
continued custody by the biological parents was likely to result in serious
permanent emotional damage to the children. The court further adopted other
recommended findings and orders as submitted by the agency. Those findings
included an active-efforts finding, as required by ICWA and section 361.7,
subdivision (a).
FN6.
Since no one challenges the court's ruling in this regard, we will neither
summarize nor consider the proffered evidence.
Finally,
the court addressed whether the agency complied with the ICWA placement
preference (25 U.S.C. ? 1915; Welf. & Inst.Code, ? 361.31) and, if not,
whether good cause existed for noncompliance. It observed it could find no
authority for fixing the precise point at which the agency must comply, at the
time of initial placement or when the court was selecting the permanent plan.
The court found the agency did comply when it placed the children with the
current caregivers and that the former relative caregivers chose, with the
consent and at the apparent urging of the Tribe, to relinquish custody of the
children. If on the other hand the placement preference must be complied with at
the time of the permanency hearing, the court found the preference had not been
met and that good cause existed for the agency's noncompliance. The court cited
the letter from the Synchrony staff and the opinion of the ICWA expert. Finding
the children had extraordinary emotional needs, the court concluded there was
good cause.
DISCUSSION
I.
Adoptability
Appellants
contend there was insufficient evidence to support the court's finding that it
was likely the children would be adoptable. According to appellants, the court
solely and improperly relied on the willingness of the children's current and
former caregivers to adopt without considering: whether the children were
generally adoptable, what the impact of their emotional or behavioral problems
was on the likelihood of their adoption, and whether the current caregivers
could meet the children's particular needs.
[1]
The adoptability issue at a section 366.26 hearing focuses on the dependent
child, e.g., whether his or her age, physical condition, and emotional state
make it difficult to find a person willing to adopt. (In
re Sarah M.
(1994) 22 Cal.App.4th 1642, 1649, 28 Cal.Rptr.2d 82 (Sarah
M.).)
It is not necessary that the child already be in a potential adoptive home or
that there be a proposed adoptive parent ?waiting in the wings.? (In
re Jennilee T.
(1992) 3 Cal.App.4th 212, 223, fn. 11, 4 Cal.Rptr.2d 101.)
**858
[2] *1312
Conversely, the existence of a prospective adoptive parent, who has expressed
interest in adopting a dependent child, constitutes evidence that the child's
age, physical condition, mental state, and other relevant factors are not likely
to dissuade individuals from adopting the child. In other words, a prospective
adoptive parent's willingness to adopt generally indicates the child is likely
to be adopted within a reasonable time either by the prospective adoptive parent
or by some other family. (Sarah
M., supra,
22 Cal.App.4th at pp. 1649-1650, 28 Cal.Rptr.2d 82.) Having reviewed the record
as summarized above, we conclude there was substantial evidence to support the
court's adoptability finding. (In
re Brison C.
(2000) 81 Cal.App.4th 1373, 1378-1379, 97 Cal.Rptr.2d 746 (Brison
C.).)
A.
Substantial evidence of adoptability
[3]
The children were young, three and four years old, and physically healthy. Each
child's expressive and receptive language skills previously were diagnosed as
delayed. However, each child was making progress through early intervention
preschool programs. Neither child received services with the Central Valley
Regional Center. Their current caregivers saw the children as ?very bright[;]
they just need the proper environment, avenue [and] skills to
flourish.?
The
children also shared a close relationship with one another, although each child
exhibited sibling rivalry and conflict. They sometimes fought over toys and were
aggressive toward one another, requiring a high level of parental intervention
and redirection. On the other hand, they played well with other children and
were ?good meeting new people.?
In
addition, each child had been diagnosed since late 2006 with an attachment
disorder. They received regular family and individual therapy and, in spite of
the disorder, had made significant psychological progress while in their current
placement, as well as important strides in their attachment potential. With the
help of counseling and support groups, their current caregivers saw ?a bright
future? for the children. Despite the children's current emotional and
behavioral problems, their current caregivers had not wavered from their
commitment to raising the children as their own, advising the court, ?[w]e are
100% committed to these girls. It's an adjustment for everyone but I think we
are all doing well.? Finally, not only were the children's current caregivers
committed to adoption, their former relative caregivers had made a request for
adoptive placement.
[4]
Given the children's positive attributes, the progress they were making in
overcoming their behavioral and emotional problems, as well as the current and
former caregivers' willingness to adopt them, the court properly could
*1313
find that it was likely the children would be adopted. (? 366.26, subd. (c)(1).)
To the extent appellants contend the trial court solely relied on the
caregivers' willingness to adopt in reaching its decision, we are not persuaded.
The juvenile court's reasoning is not a matter for our review. (Davey
v. Southern Pac. Co.
(1897) 116 Cal. 325, 329, 48 P. 117.) It is judicial action not judicial
reasoning which is the proper subject of appellate review. (El
Centro Grain Co. v. Bank of Italy, Etc.
(1932) 123 Cal.App. 564, 567, 11 P.2d 650.)
[5][6][7]
Further, appellants approach the question of the children's adoptability by
picking and choosing evidence from the record in support of their argument. This
is not an approach we may follow on review. The power of an appellate court
asked to assess the sufficiency of the evidence**859
begins and ends with a determination of whether there is any substantial
evidence, whether or not contradicted, which will support the conclusion of the
trier of fact. (Brison
C., supra,
81 Cal.App.4th at pp. 1378-1379, 97 Cal.Rptr.2d 746.) All conflicts must be
resolved in favor of the respondent and all legitimate inferences indulged in to
uphold the decision, if possible. We may not reweigh or express an independent
judgment on the evidence. (In
re Laura F.
(1983) 33 Cal.3d 826, 833, 191 Cal.Rptr. 464, 662 P.2d 922 (Laura
F.).)
B.
?Generally adoptable? is not a required finding
[8][9]
Contrary to appellants' claim, the law does not require a juvenile court to find
a dependent child ?generally adoptable? before terminating parental rights. All
that is required is clear and convincing evidence of the likelihood that the
dependent child will be adopted within a reasonable time. (In
re Zeth S.
(2003) 31 Cal.4th 396, 406, 2 Cal.Rptr.3d 683, 73 P.3d 541; ? 366.26, subd.
(c)(1).) The likelihood of adoptability may
be satisfied by a showing that a child is generally
adoptable, that is, independent of whether there is a prospective adoptive
family waiting in the wings. (In
re Jayson T.
(2002) 97 Cal.App.4th 75, 85, 118 Cal.Rptr.2d 228, disapproved on another ground
in In
re Zeth S., supra,
31 Cal.4th at pp. 413-414, 2 Cal.Rptr.3d 683, 73 P.3d 541.) However, the case
law also recognizes that the juvenile court may properly consider a prospective
adoptive parent's willingness to adopt as evidence that the child is likely to
be adopted within a reasonable time. (Sarah
M., supra,
22 Cal.App.4th at pp. 1649-1650, 28 Cal.Rptr.2d 82.)
C.
No requirement of additional approved families
[10]
Case law does not require evidence of additional approved families who are
available and willing to adopt the children. Appellants' reliance on cases such
as In
re Jerome D.
(2000) 84 Cal.App.4th 1200, 101 Cal.Rptr.2d 449 *1314
(Jerome
D.)
is misplaced. In Jerome
D.,
the appellate court reversed an adoptability finding that it concluded was based
on the willingness of a child's stepfather to adopt him. The Jerome
D.
court held that such evidence would not suffice because the adoption assessment
failed to address the stepfather's criminal and child protective services
history, which was considerable, as required by section 366.22, subdivision
(b)(4). (Jerome
D., supra,
84 Cal.App.4th at p. 1205, 101 Cal.Rptr.2d 449.) Although the Jerome
D.
court observed there was no evidence of any approved families willing to adopt
the child, appellants ignore the lack of any holding requiring this proof, as
well as the factual dissimilarity between Jerome
D.
and the present case.
D.
Caregivers' ability to meet the children's needs
Next,
appellants' claim of insufficient proof that the current caregivers could meet
the children's particular needs is not only factually incorrect but is based on
a legally faulty premise. Ignoring the children's positive attributes and their
former caregivers' expressed desire to adopt, appellants claim the children
could only be considered adoptable because a particular family-the current
caregivers-were willing to adopt. Appellants go on to cite In
re Carl R.
(2005) 128 Cal.App.4th 1051, 1062, 27 Cal.Rptr.3d 612 (Carl
R.)
for the proposition the trial court had no information from which to determine
whether the current caregivers could meet the children's particular needs. We
disagree.
There
was evidence, as required by statute, of the current caregivers' capacity to
**860
meet the children's needs. Section 366.21, subdivision (i)(1)(D), mandates the
following as part of the agency's written assessment for purposes of a section
366.26 hearing:
?A
preliminary assessment of the eligibility and commitment of any identified
prospective adoptive parent or legal guardian, particularly the caretaker, to
include a social history including screening for criminal records and prior
referrals for child abuse or neglect, the capability to meet the child's needs,
and the understanding of the legal and financial rights and responsibilities of
adoption and guardianship.?
In
its preliminary assessment under the subheading ?Capability to Meet Child(ren)'s
Needs,? the agency wrote:
?The
current foster parents have provided for the minors' emotional and material
needs since the children were placed in 05/
The
November 2007 letter from the Synchrony staff also supported this assessment by
noting the ?significant psychological progress the girls [had] *1315
made while in this placement.? A social worker update from early January 2008
revealed the current caregivers were ?central to and participated in the
therapeutic services.?
[11]
On appeal, appellants criticize the lack of specifics regarding whether the
current caregivers had specialized training or prior experience raising children
as well as the current caregivers' apparent decision to discontinue play therapy
for the children. This criticism appears to be an attack on the current
caregivers' suitability to adopt, which is not a proper subject of inquiry at a
section 366.26 hearing. (In
re Scott M.
(1993) 13 Cal.App.4th 839, 844, 16 Cal.Rptr.2d 766.)
In
any event, appellants' criticisms do not take away from the substantial evidence
supporting the court's adoptability finding. There was no evidence that these
children needed caregivers with specialized training or prior parenting
experience. As for the play therapy which began in December 2006, its purpose
was to help determine why
the children fought and to understand
the nature of their communication delays, not necessarily to treat these
problems. In turn, the play therapist would make referrals for other services.
The evidence was undisputed that, by the summer of 2007, the play therapy was no
longer beneficial. Further, the record is undisputed that the current caregivers
were working with the Synchrony staff to help the children with the bonding
process and their attachment disorder issues, as well as help them decrease
their behavior problems.
Last,
we disagree with appellants' claim, pursuant to Carl
R.,
that a greater showing was necessary. Carl
R.
is so factually distinguishable from the present case as to be of little factual
or legal significance. Carl R. suffered severe disabilities to the extent that
he would always
require total care. Although he was approximately eight years old, the child
lived for most of his life in a convalescent hospital and had the emotional
maturity of an eight-month-old infant. (Carl
R., supra,
128 Cal.App.4th at p. 1058, 27 Cal.Rptr.3d 612.) At trial, the court confronted
competing claims over whether he should be freed for adoption by a family who
would home-school him.
As
the Carl
R.
court observed, the appellate issue was ?very narrow-what is the proper scope of
the inquiry by the **861
juvenile court in determining the adoptability of a child who will require
intensive care for life?? (Carl
R., supra,
128 Cal.App.4th at p. 1062, 27 Cal.Rptr.3d 612.) In resolving this issue, the
appellate court observed that, where the child is deemed adoptable based solely
on the fact that a particular family is willing to adopt him or her, the trial
court may consider whether the family can meet the particular needs of the
child. (Ibid.)
*1316
The Carl
R.
court concluded the juvenile court sufficiently assessed the prospective
parents' ability to meet the child's educational needs; an inquiry into their
specific educational plan was unwarranted. Carl
R.
does not compel a different result in this case.
E.
Adequacy of the agency's assessment report
In
a final effort to attack the court's adoptability finding, appellants contend
the agency's assessment report on the children did not substantially comply with
all of the statutory requirements for such a report.FN7
In appellants' view, the assessment did not provide: (1) enough specificity
about the children's contact with their parents, younger sibling, their extended
family members, including their former relative caregivers; and (2) updated
information on the final outcome of the children's mental health evaluations and
the older child's Individual Education Plan which were pending as the agency
prepared their assessment in November 2007. Appellants also criticize the agency
for not reporting on the former relative caregivers as prospective adoptive
parents under section 366.21, subdivision (c)(1)(D) and (E). Further, appellants
argue the agency should have addressed in its assessment whether the current
caregivers, as a same-sex couple, could jointly adopt the children.
FN7.
The assessment, which provides the information necessary for the juvenile court
to determine the likelihood of the dependent child's adoptability (? 366.26,
subd. (c)(1)), shall include:
?(A)
Current search efforts for an absent parent or parents or legal
guardians.
?(B)
A review of the amount of and nature of any contact between the child and his or
her parents or legal guardians and other members of his or her extended family
since the time of placement. Although the extended family of each child shall be
reviewed on a case-by-case basis, ?extended family? for the purpose of this
subparagraph shall include, but not be limited to, the child's siblings,
grandparents, aunts, and uncles.
?(C)
An evaluation of the child's medical, developmental, scholastic, mental, and
emotional status.
?(D)
A preliminary assessment of the eligibility and commitment of any identified
prospective adoptive parent or legal guardian, particularly the caretaker, to
include a social history including screening for criminal records and prior
referrals for child abuse or neglect, the capability to meet the child's needs,
and the understanding of the legal and financial rights and responsibilities of
adoption and guardianship. If a proposed guardian is a relative of the minor,
and the relative was assessed for foster care placement of the minor prior to
January 1, 1998, the assessment shall also consider, but need not be limited to,
all of the factors specified in subdivision (a) of Section 361.3.
?(E)
The relationship of the child to any identified prospective adoptive parent or
legal guardian, the duration and character of the relationship, the motivation
for seeking adoption or guardianship, and a statement from the child concerning
placement and the adoption or guardianship, unless the child's age or physical,
emotional, or other condition precludes his or her meaningful response, and if
so, a description of the condition.
?(F)
A description of efforts to be made to identify a prospective adoptive parent or
legal guardian, including, but not limited to, child-specific recruitment and
listing on an adoption exchange within the state or out of the
state.
?(G)
An analysis of the likelihood that the child will be adopted if parental rights
are terminated.? (? 366.21, subd. (i)(1).)
**862
[12][13] *1317
Notably, no one challenged the adequacy of the agency's assessment on any
grounds, let alone on the grounds appellants now raise. Having failed to object
to the assessment's adequacy in the juvenile court, appellants have waived any
such objection on appeal. (In
re Brian P.
(2002) 99 Cal.App.4th 616, 623, 121 Cal.Rptr.2d 326.) In this regard, we
distinguish appellants' right to raise the sufficiency of the evidence to
support the adoptability finding even though they did not argue the issue in the
juvenile court. This is because it is the agency's burden to establish a
dependent child's adoptability. (See In
re Chantal S.
(1996) 13 Cal.4th 196, 210, 51 Cal.Rptr.2d 866, 913 P.2d 1075.) To the extent
appellants rely on In
re Valerie W.
(2008) 162 Cal.App.4th 1, 13-16, 75 Cal.Rptr.3d 86 (Valerie
W.),
in which the appellate court determined an assessment statutorily inadequate
resulting in a conclusion that substantial evidence did not support an
adoptability finding, they overlook the fact that the parties in Valerie
W.
did challenge the assessment's adequacy in the trial court. (Id.
at p. 7, 75 Cal.Rptr.3d 86.) Consequently, Valerie
W.
does not persuade us to consider appellants' criticisms for the first time on
appeal.
II.
Active efforts to provide remedial services
Appellants
challenge the court's ICWA finding that active efforts were made to provide
remedial services and rehabilitative programs designed to prevent the breakup of
the Indian family and that these efforts proved unsuccessful. (25 U.S.C. ? 1912,
subd. (d); Welf. & Inst.Code, ? 361.7, subd. (a).) Specifically, they
criticize the agency and the court for not placing the children with their
relatives until September 2006. They also contend that neither the agency nor
the court took the Tribe's prevailing social and cultural standards into account
when the former relative caregivers, supported by the Tribe, once again
requested placement at the section 366.26 hearing. Under these circumstances,
appellants argue there was insufficient evidence to support the active-efforts
finding.
Both
ICWA and now section 361.7, subdivision (a), provide:
?[A]
party seeking an involuntary foster care placement of, or termination of
parental rights over, an Indian child shall provide evidence to 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 proved unsuccessful.?
Historically,
courts in California have interpreted the active-efforts finding as ?essentially
undifferentiable? from a reasonable-reunification-services finding. (See, e.g.,
In
re Michael G.
(1998) 63 Cal.App.4th 700, 712-714, 74 Cal.Rptr.2d 642 (Michael
G.).)
?The phrase ?active efforts,? construed with common sense and syntax [citation],
seems only to require that timely and affirmative steps be taken to accomplish
the goal which Congress has set: to avoid the breakup of Indian families
whenever possible by providing services designed to remedy problems which might
lead to *1318
severance of the parent-child relationship.? (Letitia
V. v. Superior Court
(2000) 81 Cal.App.4th 1009, 1016, 97 Cal.Rptr.2d 303.)
?Under
the ICWA, however, the court shall also take into account ?the prevailing social
and cultural conditions and way of life of the Indian child's tribe. [Remedial
services] shall also involve and use the available resources of the extended
family, the tribe, Indian social service agencies **863
and individual Indian care givers.? ? (Michael
G., supra,
63 Cal.App.4th at p. 714, 74 Cal.Rptr.2d 642, citing Guidelines, 44 Fed.Reg.
67592, ? D.2.)
Now,
with the Legislature's incorporation of ICWA standards into our dependency law,
it has endorsed the Guidelines approach taken in Michael
G.
with the following direction:
?What
constitutes active efforts shall be assessed on a case-by-case basis. The active
efforts shall be made in a manner that takes into account the prevailing social
and cultural values, conditions, and way of life of the Indian child's tribe.
Active efforts shall utilize the available resources of the Indian child's
extended family, tribe, tribal and other Indian social service agencies, and
individual Indian caregiver service providers.? (? 361.7, subd.
(b).)
To
date there is no published caselaw interpreting section 361.7, subdivisions (a)
and (b).
[14][15]
Preliminarily, we observe that the agency argues appellants have forfeited the
right to complain on appeal about the time it took to place the children with
their relative caregivers because they should have raised the issue in an
earlier appeal or writ. To the extent appellants criticize the agency's effort
at the outset of these proceedings, we agree with the agency. The court made an
active-efforts finding as part of its order for foster care placement at the
September 2005 dispositional hearing. Neither the mother nor the Tribe appealed
that decision which is now final and no longer subject to our review.
(In
re Elizabeth M.
(1991) 232 Cal.App.3d 553, 563, 283 Cal.Rptr. 483 [appeal from most recent order
entered in dependency matter may not challenge prior orders for which statutory
time for filing appeal has passed].) Otherwise, we assume appellants may argue
the active-efforts issue because the court did not make another active-efforts
finding until it reached its decision to terminate parental rights. Either way,
appellants' argument is not persuasive.
[16]
Appellants fail to cite any authority for the proposition that, in order for a
court to make an active-efforts finding under section 361.7, subdivision (a), it
must consider, as part of or in addition to remedial services and rehabilitative
programs, the issue of the Indian child's placement. No doubt placement of an
Indian child is an important issue. The United States Supreme Court, in
Mississippi
Choctaw Indian Band v. Holyfield
(1989) 490 U.S. 30, 36, 109 S.Ct. 1597, 104 L.Ed.2d 29, described ICWA's
placement preference as the most important substantive requirement imposed on
state courts. However, ICWA and now California's statutory law address the issue
of an Indian child's placement separately from the issue of active efforts. (See
25 U.S.C. *1319
? 1912(d); Welf. & Inst.Code, ? 361.31.) Following their lead, we
distinguish the issue of placement from that of active efforts.
In
any event, appellants ignore the fact that ?active efforts? pertains to
?remedial services and rehabilitative programs designed to prevent the breakup
of the Indian family.? (? 361.7, subd. (a).) As a result, even if an active
efforts finding under section 361.7, subdivision (a) should now be interpreted
to include services related to placement, it also incorporates what we would
otherwise refer to as reunification services. Here, there is no suggestion by
appellants that the agency failed to provide the mother with remedial services
and rehabilitative programs designed to prevent the family's break up.
Unfortunately, she simply failed to participate in any meaningful way in the
services she was provided.
**864
In addition, as the former relative caregivers' declaration disclosed, the
agency could not place the children with them any earlier than it did. The
relative caregivers' foster care license did not permit them to care for more
than two children. Moreover, those relatives apparently chose to have the
children's sibling placed first with them. Once the relative caregivers obtained
a foster care license for three children, the agency placed the children with
them. Even if the former relative caregivers had not been licensed foster
parents, they still would need to meet licensing standards for a foster family
home. (?? 309, subd. (d)(1) & 361.3, subd. (a)(8).)
[17][18]
Here, there apparently was an issue over sufficient space in the former relative
caregivers' home. To the extent appellant mother contends the former relative
caregivers' home did not have to meet these standards, we disagree. The law
exempting homes of extended family members of an Indian child from licensing
requirements under the Community Care Facilities Act (Health & Saf. Code, ?
1505, subd. (o)(1))
does not support appellants' contention. In even non-ICWA dependencies, homes of
relative caregivers are exempt from such licensing requirements. (Health &
Saf. Code, ? 1505, subd. (l)(1).)
Nevertheless, all of these homes must meet standards to assure a court of the
appropriateness of the placement. (See ? 361.4 [which refers to ICWA placements
as well as non-ICWA placements].)
On
this record, we are persuaded there was substantial evidence to support the
trial court's second active-efforts finding.
III.
Issue of detriment
Next,
appellants claim that, because the Tribe argued the children were Indian
children and, in its view, there were compelling reasons for determining
parental rights termination would not be in their best interests (? 366.26,
subd. (c)(1)(B)(vi) (Indian Child Exception)), the court erred by neither
*1320
addressing this argument in its decision to terminate nor finding termination
would be detrimental under the Indian Child Exception. We disagree with both
claims of error.
[19][20][21]
Once reunification services are ordered terminated, the focus shifts to the
needs of dependent children for permanency and stability. (In
re Marilyn H.
(1993) 5 Cal.4th 295, 309, 19 Cal.Rptr.2d 544, 851 P.2d 826.) A section 366.26
hearing is designed to protect these children's compelling rights to have a
placement that is stable, permanent, and allows the caretaker to make a full
emotional commitment to the child. (In
re Marilyn H., supra,
at p. 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) If, as in this case, the children
are likely to be adopted, adoption is the norm. Further, the court must
terminate parental rights and order adoption, unless one of the specified
circumstances in section 366.26, subdivision (c)(1), provides a compelling
reason for finding that termination of parental rights would be detrimental to
the child. (In
re Celine R.
(2003) 31 Cal.4th 45, 53, 1 Cal.Rptr.3d 432, 71 P.3d 787 (Celine
R.).)
?The
specified statutory circumstances-actually, exceptions
to the general rule that the court must choose adoption where possible-must be
considered in view of the legislative preference for adoption when reunification
efforts have failed.' (In
re Jasmine D.
[ (2000) ] 78 Cal.App.4th [1339,] 1348[, 93 Cal.Rptr.2d 644].) At this stage of
the dependency proceedings, ?it becomes inimical to the interests of the minor
to heavily burden efforts to place the child in a permanent alternative home.?
(Cynthia
D. v. Superior Court
[ (1993) ] 5 Cal.4th [242,] 256[, 19 Cal.Rptr.2d 698, 851 P.2d 1307].) The
statutory exceptions merely permit the court, in exceptional
circumstances
(In
re Jasmine D., supra,
at pp. 1348-1349[, 93 Cal.Rptr.2d 644] ) to choose an option other than the
norm, which remains adoption.? (Celine
R., supra,
31 Cal.4th at p. 53, 1 Cal.Rptr.3d 432, 71 P.3d 787.)
Over
the years, the list of statutory exceptions has grown. (See Celine
R., supra,
31 Cal.4th at p. 53, 1 Cal.Rptr.3d 432, 71 P.3d 787.) Effective January 1, 2007,
the Legislature added the Indian Child Exception, which provides:
?(vi)
The child is an Indian child and there is a compelling reason for determining
that termination of parental rights would not be in the best interest of the
child, including, but not limited to:
?(I)
Termination of parental rights would substantially interfere with the
**865
child's connection to his or her tribal community or the child's tribal
membership rights.
?(II)
The child's tribe has identified guardianship, long-term foster care with a fit
and willing relative, or another planned permanent living arrangement for the
child.? (? 366.26, subd. (c)(1)(B)(vi); formerly ? 366.26, subd.
(c)(1)(F).)
To
date, there is no published caselaw interpreting this exception.
*1321
A. No requirement for an expressed finding
[22]
Appellants theorize that, when a party raises a statutory exception to
termination, a juvenile court must address that exception one way or another in
its decision by expressly finding it does or does not apply. If a trial court
does not expressly address an argued exception, appellants claim we may not
imply a negative finding and instead should conduct an independent review of the
record. Here, appellants claim we should conclude that the Indian Child
Exception did apply and reverse the termination order.
[23][24][25]
Although appellants cite numerous authorities in their argument, they do not
cite any which support their position. They also do not recognize
well-established case law to the contrary. A finding of no detriment is not a
prerequisite to the termination of parental rights. (In
re Jasmine D. supra,
78 Cal.App.4th at p. 1347, 93 Cal.Rptr.2d 644.) The Legislature demands an
express finding on the matter of detriment only
when the trial court determines detriment exists and relies upon it to refuse to
enter an otherwise proper termination order. (In
re Jesse B.
(1992) 8 Cal.App.4th 845, 851, 10 Cal.Rptr.2d 516 (Jesse
B.);
? 366.26, subd. (c)(1)(B) [if court finds termination detrimental pursuant to
any statutory exceptions, it must state reasons].) Otherwise, when the trial
court issues a termination order, the appellate court will assume, in the
absence of a contrary indication in the record, that the trial court considered
the question of detriment and will imply, from the entry of a termination order,
a negative finding on the question of detriment. (Jesse
B., supra,
at p. 851, 10 Cal.Rptr.2d 516) Alternatively, because an exception's proponent
bears the burden of proof on the exception, the reviewing court properly may
assume the trial court was not persuaded by the evidence to find detriment.
(In
re Lorenzo C.
(1997) 54 Cal.App.4th 1330, 1343, 63 Cal.Rptr.2d 562 (Lorenzo
C.).)
Here,
although appellants assume the trial court ignored the Tribe's argument, there
is no affirmative showing in the record to that effect. As a result, we will
imply from the trial court's decision to terminate that it did consider the
matter (Jesse
B., supra,
8 Cal.App.4th at p. 851, 10 Cal.Rptr.2d 516) and rejected it, either because the
court was not persuaded by the Tribe's argument or because it decided that
termination would not be detrimental. Again, the court's rationale is not the
subject of our review. (Davey
v. Southern Pac. Co., supra,
116 Cal. at p. 329, 48 P. 117.) Rather, the issue is whether the court abused
its discretion (In
re Jasmine D., supra,
78 Cal.App.4th at p. 1351, 93 Cal.Rptr.2d 644) by not finding the Indian Child
Exception applied.
B.
The Indian Child Exception
[26]
As appellants contend, the Indian Child Exception in section 366.26, subdivision
(c)(1)(B)(vi), creates a best-interest exception to parental rights *1322
termination for an Indian child. There is no general best-interest exception to
termination for dependent children under section 366.26. (In
re Barbara R.
(2006) 137 Cal.App.4th **866
941, 955, 40 Cal.Rptr.3d 687.) Rather, the court considers whether termination
would be detrimental due to one or more of the circumstances outlined in section
366.26, subdivision (c)(1)(B). (See Celine
R., supra,
31 Cal.4th at p. 53, 1 Cal.Rptr.3d 432, 71 P.3d 787.)
[27]
The Indian Child Exception, however, now authorizes a court to consider whether
there is a compelling reason for determining that termination of parental rights
would not be in an Indian child's best interest. Also, the Indian Child
Exception includes two reasons a court may find compelling: one, if termination
of parental rights would interfere substantially with the child's connection to
his or her tribal community or the child's tribal membership rights (? 366.26,
subd. (c)(1) (B)(vi)(I)); and two, if the child's tribe has identified
guardianship, long-term foster care with a fit and willing relative, or another
planned permanent living arrangement for the child (? 366.26, subd.
(c)(1)(B)(vi)(II)). However, the subdivision does not limit the court to these
two reasons. As the Indian Child Exception states, ?there is a compelling reason
for determining that termination of parental rights would not be in the best
interest of the child, including,
but not limited to
? the two articulated reasons. (? 366.26, subd. (c)(1)(B)(vi), italics
added.)
[28]
In this way, as appellants point out, the Indian Child Exception confers broader
discretion to the court, in the case of an Indian child, than it would otherwise
possess at a permanency planning hearing to consider whether termination would
be detrimental to an adoptable child. Presumably, the reasons a court may find
compelling under the Indian Child Exception will somehow relate to the Indian
child's membership in his or her Indian tribe and connection to the tribal
community. (? 224, subd. (a)(2).) The Legislature, in section 224, subdivision
(a)(2), has declared this as an interest of an Indian child to be encouraged and
protected.FN8
In our view, the Indian Child Exception is not so broad as to include any
argument a parent or tribe may assert. To be clear, however, whether a
compelling reason exists under the Indian Child Exception is an issue committed
to the trial court as the trier of fact and its discretion to resolve whether,
on any statutory grounds, that termination would be detrimental to an otherwise
adoptable child. (? 366.26, subd. (c)(1)(B).)
FN8.
Section 224 is a declaration of legislative intent regarding the implementation
of the ICWA in California. Section 224, subdivision (a)(2), states:
?It
is in the interest of an Indian child that the child's membership in the child's
Indian tribe and connection to the tribal community be encouraged and protected,
regardless of whether the child is in the physical custody of an Indian parent
or Indian custodian at the commencement of a child custody proceeding, the
parental rights of the child's parents have been terminated, or where the child
has resided or been domiciled.?
*1323
We now turn to the question whether the trial court abused its discretion in
this case. As discussed below, we conclude that the trial court did not when it
terminated parental rights.
In
its closing argument, the Tribe represented it would support termination of
parental rights for the sole purpose of adoption by the former relative
caregivers. Otherwise, the Tribe advocated that termination and adoption by the
current caregivers was not in the children's best interests under the Indian
Child Exception because they were Indian children and termination would
substantially intervene ?with the children's connection with family.? Also, the
Tribe claimed it had **867
identified guardianship as the appropriate permanent plan.FN9
The Tribe later added it had always opposed termination of parental rights
because ?[i]n our way and custom, you can't terminate parental rights
ever.?
FN9.
We quote verbatim the Tribe's entire argument in this regard:
?The
tribe submits that termination of parental rights in the current placement of
[the children] are not in their best interest because termination of parental
rights and adoption by the current caregiver substantially intervenes with the
children's connection with family and we recognize it is in the best interest of
the children at this time. These are Indian children. The Tribe has indentified
guardianship as the desired permanent living arrangement.
?Pursuant
to section 366.26, subdivision (c)(1) [ (B)(vi) ], of the Welfare and
Institutions Code, termination of parental rights is not appropriate in these
circumstances.?
On
appeal, appellants argue the trial court should have found that termination and
adoption by the current caregivers would be detrimental for three reasons under
the Indian Child Exception. First, it would substantially interfere with the
children's relationship with their sibling; second, it would substantially
interfere with their connection to the tribal community; and third, the Tribe
had identified guardianship as a more appropriate plan.
[29][30][31][32]
Significantly, the Tribe never argued the first two of these claims to the trial
court. It neither claimed nor produced any evidence that termination would
interfere substantially with either the children's relationship with their
sibling or their connection to the tribal community. At most, there was Mr. G.'s
declaration that he twice tried to arrange contact and allegedly had no success.
Having not raised those issues and asked the trial court to exercise its
discretion, appellants are not entitled to relief on those grounds.
(Lorenzo
C., supra,
54 Cal.App.4th at p. 1339, 63 Cal.Rptr.2d 562.) The trial court has no sua
sponte duty to determine whether an exception to adoption applies if it is not
raised by a party. (In
re Rachel M.
(2003) 113 Cal.App.4th 1289, 1295, 7 Cal.Rptr.3d 153.) When, as here, the law
does not require the juvenile court to act in a certain way, appellants bear the
responsibility to care for their own interests by asking the court to exercise
its discretion in a manner that is favorable to them and presenting persuasive
evidence in that regard to the court. (Lorenzo
C., supra,
54 Cal.App.4th at p. 1339, 63 Cal.Rptr.2d 562.)
*1324
Under the circumstances, there was no need for the trial court to address the
Tribe's argument that termination would interfere ?with the children's
connection with family.? A child's ?connection with family? is not one of the
statutory exceptions that applies to adoptable children in general. There are
three statutory exceptions that reference a familial relationship: (1) where a
parent
has maintained regular visitation and contact with a child who would benefit
from continuing that relationship (? 366.26, subd. (c)(1) (B)(i)); (2) where
termination would interfere substantially with a child's sibling
relationship, taking into account a number of factors (? 366.26, subd.
(c)(1)(B)(v)); and (3) the child is living with a relative
who is unable or unwilling to adopt but still willing and capable of providing
for the child through guardianship (? 366.26, subd. (c)(1)(A)). In any event,
the Tribe never expanded on what it meant by the ?connection with family?
argument to even remotely suggest that it was arguing one or more of these
circumstances.
In
addition, the Tribe did not introduce any evidence to support, much less compel,
a detriment finding under one of these **868
circumstances. At most, there was Mr. G.'s claim of a close sibling relationship
which was controverted by other evidence. Further, it appears from the Tribe's
argument that it believed ?connection with family? was a reason envisioned under
the Indian Child Exception. However, as previously discussed, reasons which may
be compelling under the Indian Child Exception should relate somehow to the
Indian child's membership in his or her Indian tribe and connection to the
tribal community. In our view, a mere reference to ?connection with family? will
not suffice.
Even
assuming the court should have interpreted the Tribe's argument regarding the
children's placement to be a claim that termination and adoption by the current
caregivers would interfere substantially with the children's connection to their
tribal community, we nonetheless conclude the court did not abuse its
discretion. Neither appellant introduced any evidence to support such a claim.
Instead, they argue there was no evidence the current caregivers took steps to
promote the children's connection to the tribal community. In making this
argument, appellants lose sight that it was their evidentiary burden to
establish that parental rights termination would interfere substantially with
the children's connection to the tribal community. (See In
re Zachary G.
(1999) 77 Cal.App.4th 799, 809, 92 Cal.Rptr.2d 20 [it is burden of proponent of
exception to adoption to show that termination would be detrimental].) The mere
absence of evidence on that point does not prove appellants'
argument.
This
brings us to appellants' remaining argument that termination of parental rights
would not be in the children's best interests because the Tribe identified
guardianship as the appropriate permanent plan. The problem with this argument
is two-fold: One, the Tribe also identified adoption as the *1325
children's plan, provided their former relative caregivers could be the adoptive
parents; and two, although guardianship may have served the Tribe's interests,
the court, in assessing the children's best interests, was not compelled to
agree with the Tribe.
In
light of the Tribe's identification of both adoption as well as guardianship as
appropriate permanent plans for the children, the court may well have questioned
the Tribe's rationale that, according to its custom and practice, parental
rights should never be terminated. In addition, Indian children or not, the
children had a fundamental interest in stability and permanency. (In
re Jasmon O.
(1994) 8 Cal.4th 398, 419, 33 Cal.Rptr.2d 85, 878 P.2d 1297 (Jasmon
O.).)
Adoption gives a child the best chance at a full emotional commitment from a
responsible caretaker. (Celine
R., supra,
31 Cal.4th at p. 53, 1 Cal.Rptr.3d 432, 71 P.3d 787.) Guardianship, while a more
stable placement than foster care, is not irrevocable and falls short of the
secure and permanent future the Legislature had in mind for a dependent child.
(Ibid.)
The Tribe's earlier role in bringing the children's relative placement to a
premature close and current request to change their placement yet again,
notwithstanding the undisputed evidence of the children's attachment problems,
may similarly have persuaded the court that the Tribe's identification of
guardianship did not coincide with the children's interest in stability and
permanence. Under these circumstances, the court could conclude that the Tribe's
identification of guardianship as a permanent plan for the children was not a
compelling reason for finding that termination would be
detrimental.
Finally,
appellants have joined the concept of adoption by the current caregivers with
termination of parental rights in arguing**869
detriment. In other words, they do not claim termination of parental rights,
standing alone, would be detrimental to the children's best interests. To the
contrary, the Tribe supported termination if the children's former relative
caregivers could adopt them. Instead, appellants urge that termination of
parental rights and
adoption by the current caregivers would not be in the children's best
interests. However, the court's focus at a section 366.26 hearing is not upon
who will adopt a dependent child but rather whether the child is likely to be
adopted if rights are terminated. (? 366.26, subd. (c)(1).) If so, the court
must terminate parental rights unless the court finds a compelling reason,
pursuant to statute, for determining that termination of parental rights would
be detrimental. (Ibid.)
We question but need not resolve here whether appellants may properly join the
issue of termination with the question of who will adopt given the statutory
scheme.
IV.
Placement
[33]
Regardless of which permanent plan the trial court selected, the Tribe argued
before the trial court that it should defer to the Tribe's placement
*1326
preference and place the children once again with their former relative
caregivers. Since the court did not agree with the Tribe's preference,
appellants contend the court erred.
As
mentioned earlier, the court was uncertain whether compliance with Indian child
placement preferences must be evaluated as of when the children were placed with
the current caregivers or when the court was selecting the permanent plan. If it
was the former, the court found the agency did comply. If, on the other hand,
the placement preference must be complied with at the time of the permanency
hearing, the court found the preference had not been met but that good cause
existed for their noncompliance. Appellants challenge the court's good-cause
determination for insufficient evidence. (Fresno
County Dept. of Children and Family Services v. Superior Court
(2004) 122 Cal.App.4th 626, 644-646, 19 Cal.Rptr.3d 155 (Fresno
County
) [appellate court applies substantial evidence standard of review to trial
court's good-cause finding to overcome ICWA's placement
preference].)
California's
placement-preference law for Indian children is contained in section
361.31.FN10
In large part, it restates the **870
ICWA provision in 25 United States Code section 1915 which mandates that
preference in any adoptive placement of an Indian child be given, in the absence
of good cause to the contrary, a placement with (1) a member of the child's
extended family; (2) other members of the child's tribe; and (3) other Indian
families. (25 U.S.C. ? 1915, subd. (a); see Welf. & Inst.Code, ? 361.31,
subds. (c) & (h).) Also, *1327
the standards to be applied in meeting the placement preferences shall be the
prevailing social and cultural standards of the Indian community where the
parent or extended family resides or with which they maintain social and
cultural ties. (25 U.S.C. ? 1915, subd. (d); Welf. & Inst.Code, ? 361.31,
subd. (f).)
FN10.
Section 361.31 provides:
?(a)
In any case in which an Indian child is removed from the physical custody of his
or her parents or Indian custodian pursuant to Section 361, the child's
placement shall comply with this section.
?(b)
Any foster care or guardianship placement of an Indian child, or any emergency
removal of a child who is known to be, or there is reason to know that the child
is, an Indian child shall be in the least restrictive setting which most
approximates a family situation and in which the child's special needs, if any,
may be met. The child shall also be placed within reasonable proximity to the
child's home, taking into account any special needs of the child. Preference
shall be given to the child's placement with one of the following, in descending
priority order:
?(1)
A member of the child's extended family, as defined in Section 1903 of
[ICWA].
?(2)
A foster home licensed, approved, or specified by the child's
tribe.
?(3)
An Indian foster home licensed or approved by an authorized non-Indian licensing
authority.
?(4)
An institution for children approved by an Indian tribe or operated by an Indian
organization which has a program suitable to meet the Indian child's
needs.
?(c)
In any adoptive placement of an Indian child, preference shall be given to a
placement with one of the following, in descending priority order:
?(1)
A member of the child's extended family, as defined in Section 1903 of
[ICWA].
?(2)
Other members of the child's tribe.
?(3)
Another Indian family.
?(d)
Notwithstanding the placement preferences listed in subdivisions (b) and (c), if
a different order of placement preference is established by the child's tribe,
the court or agency effecting the placement shall follow the order of preference
established by the tribe, so long as the placement is the least restrictive
setting appropriate to the particular needs of the child as provided in
subdivision (b).
?(e)
Where appropriate, the placement preference of the Indian child, when of
sufficient age, or parent shall be considered. In applying the preferences, a
consenting parent's request for anonymity shall also be given weight by the
court or agency effecting the placement.
?(f)
The prevailing social and cultural standards of the Indian community in which
the parent or extended family members of an Indian child reside, or with which
the parent or extended family members maintain social and cultural ties, or the
prevailing social and cultural standards of the Indian child's tribe shall be
applied in meeting the placement preferences under this section. A determination
of the applicable prevailing social and cultural standards may be confirmed by
the Indian child's tribe or by the testimony or other documented support of a
qualified expert witness, as defined in subdivision (c) of Section 224.6, who is
knowledgeable regarding the social and cultural standards of the Indian child's
tribe.
?(g)
Any person or court involved in the placement of an Indian child shall use the
services of the Indian child's tribe, whenever available through the tribe, in
seeking to secure placement within the order of placement preference established
in this section and in the supervision of the placement.
?(h)
The court may determine that good cause exists not to follow placement
preferences applicable under subdivision (b), (c), or (d) in accordance with
subdivision (e).
?(i)
When no preferred placement under subdivision (b), (c), or (d) is available,
active efforts shall be made to place the child with a family committed to
enabling the child to have extended family visitation and participation in the
cultural and ceremonial events of the child's tribe.
?(j)
The burden of establishing the existence of good cause not to follow placement
preferences applicable under subdivision (b), (c), or (d) shall be on the party
requesting that the preferences not be followed.
?(k)
A record of each foster care placement or adoptive placement of an Indian child
shall be maintained in perpetuity by the State Department of Social Services.
The record shall document the active efforts to comply with the applicable order
of preference specified in this section.?
Section
361.31 also clarifies a number of points. First, preference shall be given to
one of three preferred placements ?in descending priority order.? (? 361.31,
subd. (c).) Second, the court may
determine that good cause exists not to follow the placement preference in
accordance with subdivision (e) of section 361.31 which permits consideration,
where appropriate, of the child's or parent's preference. (? 361.31, subd. (h).)
Third, a determination of the applicable prevailing social and cultural
standards may be confirmed by the Tribe or by the testimony or other documented
support of a qualified expert witness knowledgeable in the Tribe's social and
cultural standards. (? 361.31, subd. (f).) Fourth, section 361.31, subdivision
(j), adopts one of the rules established by this **871
court in Fresno
County, supra,
122 Cal.App.4th at page 633, 19 Cal.Rptr.3d 155, that the party requesting the
preferences not be followed bears the *1328
burden of establishing the existence of good cause. To date, there is no
published case interpreting section 361.31.
In
this case, there were two available preferential placements for the children as
defined by section 361.31 and ICWA. One was with the current caregivers, as
?another Indian family? for adoption purposes. (? 361.31, subd. (c)(3).) The
other was the former relative caregivers, as members of the children's extended
family. (? 361.31, subd. (c)(1).) What neither section 361.31 nor ICWA addresses
is the issue this case poses, namely how a court should proceed at a termination
hearing involving Indian children who are already in one preferential placement
under section 361.31 when a Tribe asks to change that placement to another with
greater priority.
We
observe that, were this a non-Indian child dependency matter, the court properly
could refuse to consider a new relative placement request at a section 366.26
hearing. (? 361.3, subd. (d).) Once a child has been removed from parental
custody, the court shall reconsider relative placement ?whenever a new placement
of the child must be made.? (? 361.3, subd. (d).) In other words, it is when a
child's placement needs to be changed, regardless of a relative-placement
request, that the court should once again give consideration to relatives.
(Cesar
V. v. Superior Court
(2001) 91 Cal.App.4th 1023, 1032, 111 Cal.Rptr.2d 243.) This approach
acknowledges the child's need for a stable placement.
At
oral argument, appellants claimed there was a need to change of the children's
placement because the children's behavior worsened while in the current
caregivers' home. The record does not support appellants' claim that the
children's circumstances had changed for the worse so as to warrant their
removal and reconsideration of a relative placement. Instead, the record
establishes that the children's behavior, as well as their emotional well-being,
had improved, albeit slowly, while in the current caregivers' home.
Consequently,
the issue remains, because this was an Indian child dependency matter, how the
court should proceed given that the children were in a preferential placement
under ICWA and section 361.31 and, but for the Tribe's new placement preference,
there was no reason to change the children's placement. Since ICWA and section
361.31 are arguably silent on the point and, given the children's fundamental
interest in stability and permanency (Jasmon
O., supra,
8 Cal.4th at p. 419, 33 Cal.Rptr.2d 85, 878 P.2d 1297), could the court properly
rely on section 361.3, subdivision (d), and determine that a new placement was
not necessary and conclude that section 361.31 had been satisfied? Or do ICWA
and section 361.31 confer such deference to tribal preference that the court
should consider placement anew at the section 366.26 hearing regardless of the
children's current placement in an ICWA-preferred home?
*1329
Here, the court wisely approached the issue with alternative analyses.
Appellants ignore the court's alternative approach in their briefs to this
court. Since the parties did not brief this issue, we cannot resolve the issue
here. Even so, we deem it appropriate to point out the issue for the
Legislature's and other courts' future consideration.
Assuming,
for the sake of argument, the Tribe's stated preference was entitled to the
court's consideration at the section 366.26 hearing, the question remains
whether there was substantial evidence to **872
support the court's good-cause finding not to place the children with their
former relative caregivers. Appellants see the issue as largely a ?blame game?
regarding the circumstances surrounding the children's removal from their
relatives' care eight months earlier. At oral argument, for instance, appellants
argued that the court held the children's removal against the Tribe and instead
should have deemed the agency to be at least partially responsible. According to
appellants, the former relative caregivers in 2007 simply voiced a desire not to
adopt rather than a request to remove and, therefore, the agency was wrong for
not discussing with them legal guardianship as an alternative to adoption. The
record supports neither of appellants' claims. The court did not assess blame in
resolving the placement issue. Also, the record is uncontroverted that the
former relative caregivers did ask the agency to remove the children. In
addition, the placement issue was not a ?compare and contrast? struggle between
the two preferential placements.
Rather,
there was opinion evidence from the Synchrony staff that ?every effort [be] made
to keep [the children's] home environment consistent? due to their attachment
disorders. ?Moving these girls would reinforce their negative inner pattern of
relating to self and others, exacerbating their attachment disorders,
significantly decreasing the chance of recovery and healing.? The ICWA expert
similarly observed that, because the children had experienced multiple
placements, they had not had a consistent relationship where they could develop
and, consequently, they suffered from attachment disorders. The court properly
could infer from this evidence that to change their placement once again for
preferential placement of a higher priority under section 361.31, subdivision
(c), would be detrimental to their extraordinary emotional needs, and there was
good cause not to follow the Tribe's stated preference. (See Cal. Rules of
Court, rule 5.484(b)(2).)
To
the extent appellants complain there was insufficient evidence that the former
relative caregivers were unable to meet the children's emotional needs,
appellants miss the point. First, any
move from the children's current home posed a serious risk of harm. As a result,
the agency established good cause not to follow the Tribe's stated preference at
the section 366.26 hearing. (? 361.31, subd. (h).) Due to the fact that any move
posed a serious *1330
risk of harm to the children, the agency did not have to establish additionally,
as appellants argue, that the former relative caregivers were unable to meet the
children's extraordinary needs. At that juncture, the Tribe could have, but did
not, introduce any evidence that a return to the former relative caregivers'
home would not have been detrimental.
In
addition, appellants overlook the agency's evidence that at least one of the
reasons the former relative caregivers gave for requesting the children's
removal was that the wife, in particular, decided she could not commit to the
long-term care of the children regarding their attachment disorder issues and
their developmental needs. It is not up to this court to reweigh the evidence on
review, as appellants would have us do. (Laura
F., supra,
33 Cal.3d at p. 833, 191 Cal.Rptr. 464, 662 P.2d 922.) Issues of fact are
matters for the trial court alone. (In
re Amy M.
(1991) 232 Cal.App.3d 849, 859-860, 283 Cal.Rptr. 788.)
Further,
we see no merit in appellants' argument that the court erroneously failed to
consider the mother's wishes in reaching its good cause finding. Section 361.31,
subdivision (e), authorizes a court to consider an Indian parent's placement
preference where appropriate. Although in 2005 she recommended the relatives for
placement, there was no current evidence of the **873
mother's preference. She did not attend, let alone testify at, the section
366.26 hearing. At most, there was her statement in her acknowledgement of
notice that she was opposed to termination of her rights. Also, given her lack
of involvement in the children's lives, the court properly could have concluded
that this was not an appropriate case, even assuming she agreed with the Tribe,
to consider the mother's wishes.
Under
all of these circumstances, we conclude the court's good-cause finding was
supported by substantial evidence. (Brison
C., supra,
81 Cal.App.4th at pp. 1378-1379, 97 Cal.Rptr.2d 746.)
V.
Sibling visitation
Appellants
contend the court abused its discretion by not ordering visitation between the
children and their sibling whom the former relative caregivers adopted. Notably,
none of the parties asked the court to make such an order at the section 366.26
hearing. At most, there was Mr. G.'s expressed desire for future sibling contact
in his declaration. We refrain from holding the court accountable to that desire
in the absence of a request for an order which could have been, but was not,
litigated. (In
re Lorenzo C., supra,
54 Cal.App.4th at p. 1339, 63 Cal.Rptr.2d 562.) Since the children's dependency
remains ongoing following our affirmance of the termination order, the Tribe may
pursue this issue with the agency and the trial court.
*1331
DISPOSITION
Respondent's
request for judicial notice is denied. The trial court's decision is
affirmed.
WE
CONCUR: LEVY and DAWSON, JJ.