|
(Cite
as: 182 Cal.App.4th 1496, 107 Cal.Rptr.3d
107) |
Court
of Appeal, Fourth District, Division 2, California.
In
re M.B., a Person Coming Under the Juvenile Court Law.
Riverside
County Department of Public Social Services, Plaintiff and
Respondent,
v.
D.B.
et al., Defendants and Appellants.
No.
E048581.
March
22, 2010.
Review
Denied June 23, 2010.
**109
Lori A. Fields, under appointment by the Court of Appeal, for Defendant and
Appellant Father.
Joseph
T. Tavano, San Diego, under appointment by the Court of Appeal, for Defendant
and Appellant Mother.
Pamela
J. Walls, County Counsel, and Anna M. Deckert, Deputy County Counsel, for
Plaintiff and Respondent.
*1499
OPINION
RAMIREZ,
P.J.
D.B.,
father, and C.B., mother, appeal from a judgment terminating their parental
rights to M.B. M.B.'s four older half-siblings were previously freed from
parental custody and control after D.B. molested his 14-year-old stepdaughter
and the parents failed to reunify. Mother was required to keep her children away
from D.B., a registered sex offender, but continued her relationship with him,
resulting in the birth of M.B. M.B. was made a dependent due to his siblings'
neglect and sexual abuse, and services were denied, with the concurrence of the
Choctaw Nation of Oklahoma (the Tribe), with which father was an enrolled
member.
Subsequently,
the court conducted a hearing to select and implement a permanent plan of
adoption. (Welf. & Inst.Code, FN1
? 366.26.) At the hearing, the juvenile**110
court applied the Indian Child Welfare Act (ICWA), which requires the expert
opinion of an Indian expert that continued custody of the child by the parent or
Indian custodian would result in serious emotional or physical damage to the
child. Both appeal the judgment. Father argues the judgment must be reversed
because the Indian expert did not conduct an adequate investigation. Mother
joins this challenge. We affirm.
FN1.
All statutory references are to the Welfare and Institutions Code unless stated
otherwise.
BACKGROUND
Prior
to the birth of M.B., mother and father lost custody of four other
minors.FN2
The three oldest children were made dependents due to mother's neglect, and they
were returned to her custody in 2002. The following year, the children were
removed again, this time due to allegations that father had molested the oldest
stepchild, and mother failed to protect her. In the meantime, mother gave birth
to a son who was added to the prior dependency and removed from mother's custody
due to risk of harm relating to father's sexual abuse of a sibling and mother's
neglect. Parental rights to the older four children were terminated on January
23, 2006.
FN2.
The oldest child involved in the prior dependency has a different
father.
M.B.,
the subject of the current dependency proceedings, was born the following year.
On July 17, 2007, M.B. (the child) was taken into temporary custody due to risk
of sexual abuse based on the sibling's sexual abuse, and because mother
maintained a relationship with father, a registered sex *1500
offender. A dependency petition was filed on July 19, 2007, alleging neglect and
failure to protect (? 300, subd. (b)), relating to the risk of molestation
arising from mother's cohabitation with father, a registered sex offender, the
parents' history of substance abuse, and the parents' failure to reunify with
the older children. It was further alleged that the minor's siblings had been
abused and neglected, placing him at risk of similar harm. (? 300, subd.
(j).)
The
trial court found that ICWA applied at the time of the detention hearing, and
made the appropriate findings to justify removal of an Indian child from his
parents. The tribe intervened on August 21, 2007. At the jurisdiction hearing
which was conducted on January 8, 2008,FN3
the court struck the neglect and failure to protect allegation (? 300, subd.
(b)), and made a true finding that M.B. was a dependent due to the abuse or
neglect of his siblings. (? 300, subd. (j).) The court found that continued
custody by his parents was likely to cause M.B., an Indian child, serious
physical damage, and that active efforts to prevent removal were unsuccessful.
M.B. was removed from his parents' custody and services were denied on the basis
of the order terminating parental rights to the child's siblings (? 361.5, subd.
(b)(10)), and father's conviction of a violent felony. (? 361.5, subd. (b)(12).)
The tribe agreed with the recommendation to deny services. The court scheduled a
hearing to select and implement a permanent plan of adoption. (?
366.26.)
FN3.
The jurisdiction hearing was continued until ICWA noticing was complete, and an
ICWA Indian expert was identified.
The
section 366.26 hearing was continued several times to determine placement of
M.B., and to allow home evaluations of out-of-state relatives. On May 7, 2008,
at a permanent plan review hearing (? 366.3), the court ordered the Department
of Public Social Services (DPSS) to look into placement of M.B. in the same
adoptive home as his siblings and half-sibling. Although DPSS felt M.B. was
better off in a **111
placement by himself, on September 16, 2008, the court ordered that M.B. be
placed in the siblings' home.
In
November 2008, M.B. had adjusted well to the Indian-approved home where his
siblings and half-sibling lived and the parents continued monthly visits.
However, the section 366.26 hearing had to be continued further due to lack of a
declaration by an Indian expert. In the meantime, the home study of the
prospective adoptive parents that had been completed in March 2007 *1501
relating to the older siblings was amended to include M.B., and the adoption
assessment report was prepared. However, by January 2009, the adoptive parents
experienced financial and marital problems, and the adoptive father informed
DPSS he had second thoughts about adopting. The adoptive mother was still
committed to adoption, and DPSS approved her request to adopt M.B. on her
own.
On
May 14, 2009, the Declaration of an Indian Expert was filed along with an
addendum to the report prepared for the 366.26 hearing. The declaration set out
the Indian expert's qualifications, and explained that the expert had spoken
with both the Tribe's social worker and the DPSS social worker, visited the
minor, and reviewed the social worker's reports. In the opinion of the Indian
expert, continued custody of M.B. by his parents would result in substantial
danger to the physical health, safety, protection or physical or emotional
well-being of the minor and that active efforts had been made by the social
worker to prevent the breakup of the Indian family.
On
June 1, 2009, the section 366.26 hearing took place. Initially, all parties
stipulated to admission of the reports, including the Declaration of the Indian
expert. However, after the case was closed to evidence, father argued that the
Indian expert's investigation was inadequate, in addition to arguing that
adoption would be detrimental due to the existence of a beneficial parent-child
relationship. DPSS reopened its case and called the Indian expert as a witness
to testify about her specific recommendation that parental rights be terminated.
During the parents' cross-examination of the Indian expert, she expanded on the
investigation described in her declaration, acknowledging that she normally does
not speak to the parents.
At
the conclusion of the hearing, the court found beyond a reasonable doubt that
M.B. is adoptable, that active efforts had been made to provide remedial
services and rehabilitative programs but that such efforts were unsuccessful;
that continued custody of the child by the parents was likely to result in
serious emotional and physical damage to the child; and that termination of
parental rights would not be detrimental to the child. The parents
appealed.
DISCUSSION
[1]
The parents argue that the judgment terminating parental rights must be reversed
because the investigation conducted by the Indian expert was substantively
deficient to support the opinion that continued custody of the *1502
child by the parent or Indian custodian is likely to result in serious emotional
or physical damage to the child. In a related argument, the parents argue that
the court erred in proceeding to terminate parental rights despite the
inadequacy of the Indian expert, and given the court's acknowledgment it did not
know what standards applied to expert testimony or investigation. FN4
FN4.
Although the court stated it did not know the exact specifications that qualify
one to be an Indian expert, or if there is a requirement that an Indian expert
talk with the parents, it concluded there was some independent investigation. No
objection was made by the parents to a ruling by the court and no request was
made to provide evidence of the specific requirements of an Indian expert. Thus,
this secondary issue was not preserved for appeal.
**112
There was no objection to the admission into evidence of either the Indian
expert's declaration or her qualifications to testify as an expert. Although the
court stated it did not know the exact specifications that qualify one to be an
Indian expert, or if there is a requirement that an Indian expert talk with the
parents, it concluded there was some independent investigation. The parents did
not object to the court's ruling on the ground it was premature, did not request
a continuance, and they did not proffer evidence of any specific requirements of
an Indian expert, although they had ample time. Thus, we are not concerned with
the adequacy of the Indian expert's qualifications or the declaration submitted
by the expert in lieu of a report.
Nevertheless,
the essence of the parents' arguments is that the judgment terminating parental
rights is not supported by sufficient evidence. We disagree.
a.
ICWA
Does Not Require an Indian Expert to Interview Parents in Every
Case.
ICWA
protects the interests of Indian children and promotes the stability and
security of Indian tribes and families by establishing minimum federal standards
in juvenile dependency cases. (25 U.S.C. ?? 1901, 1902; In
re Robert A.
(2007) 147 Cal.App.4th 982, 988, 55 Cal.Rptr.3d 74.) Those standards require the
juvenile court to make certain findings affecting an Indian child before
ordering foster care or terminating parental rights. Before the court can
terminate parental rights it must make a finding, ?supported by evidence beyond
a reasonable doubt, including testimony of qualified expert witnesses, that the
continued custody of the child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child.? (25 U.S.C. ?
1912(f); see also ? 366.26, subd. (c)(2)(B)(ii).) This finding is commonly
referred to as the ICWA detriment finding. (In
re Barbara R.
(2006) 137 Cal.App.4th 941, 950, 40 Cal.Rptr.3d 687.)
*1503
The legislative history of ICWA reveals that Congress attributed many
unwarranted removals of Indian children to cultural bias on the parts of state
courts and social workers making decisions. (Guidelines for State Courts; Indian
Child Custody Proceedings, 44 Fed.Reg. 67584, 67593, ? D.3, Commentary (Nov. 26,
1979) (Guidelines).) Thus, ICWA and the Guidelines require the use of one or
more Indian experts to educate the trial court on the tribal culture and
childrearing practices. ?Determining the likelihood of future harm frequently
involves predicting future behavior-which is influenced to a large degree by
culture. Specific behavior patterns will often need to be placed in the context
of the total culture to determine whether they are likely to cause serious
emotional harm.? (Guidelines, supra,
44 Fed.Reg. at p. 67593, ? D.4, Commentary.)
[2][3]
ICWA does not require evidence of social and cultural standards of an Indian
child's tribe before parental rights are terminated. (In
re Brandon T.
(2008) 164 Cal.App.4th 1400, 1413, 80 Cal.Rptr.3d 287.) Nor does ICWA require a
person who is qualified to testify as an expert on Indian culture to conduct an
independent investigation of the causes of the dependency or the recommendations
relating to the permanent plan. In this respect, father's assertion that the
?whole purpose of [the Indian expert's] independent investigation**113
is to evaluate the case and reach a conclusion that is qualitatively more
reliable than the DPSS social worker or the Tribe's social worker? is not
covered or included in the Guidelines. FN5
FN5.
Father bases his assertion on the Commentary to section D.4 in the Guidelines.
However, section D.4 simply relates to the requirement of competent testimony
from an Indian expert. Subsection (a) to section D.4 states that removal of an
Indian child must be based on competent testimony from one or more ?experts
qualified to speak to the issue of whether continued custody by the parents or
Indian custodians is likely to result in serious physical or emotional damage to
the child.? Nothing in the commentary or the specific guideline states that an
Indian expert is required to conduct an independent investigation to evaluate
the case and reach a conclusion that is qualitatively more reliable than the
DPSS social worker or the Tribe's social worker.
Given
the paucity of California decisions governing the standards for Indian expert
testimony, father cites several Alaska decisions as support for his assertion
that an inadequate expert investigation justifies reversal of an order
terminating parental rights. However, those decisions are inapposite. In
C.J.
v. Department of Health & Soc. Svcs.
(Alaska 2001) 18 P.3d 1214, the Indian expert did not interview either the
parent or the child. In that case, the children were removed from the mother in
Alaska; father was a noncustodial, nonoffending parent who lived in Florida. An
evaluation of father's residence under the Interstate Compact for the Placement
of Children *1504
(ICPC) initially recommended against placement with the father because his job
involved extensive travel. However, father quit his job in order to take care of
his children and a more favorable home study resulted, but Florida rejected the
ICPC placement. (Id.
at p. 1216.) Parental rights were terminated subsequently on the ground of
abandonment, due to father's lack of communication with the children.
(Id.
at p. 1217.)
On
appeal, the father contended there was insufficient evidence to support the ICWA
detriment finding. Although the Alaska Supreme Court acknowledged that father
had failed to maintain contact with his children, he was not required to prove
he was a fit parent. (C.J.
v. Dept. of Health & Soc. Svcs., supra,
18 P.3d at pp. 1217-1218.) The court went on to note that the social services
agency had not met the ICWA detriment standard (id.
at p. 1218), and the Indian expert's opinion, which was based solely on
information provided by the social worker, did not establish the standard,
either. However, the court did not hold that Indian experts are required to
interview the parents. At page 1218, the court stated: ?We do not hold that a
meeting between the expert and the parties to the termination proceeding is
required in every case. But the expert opinion should be based on the particular
facts and issues of the case to a greater extent than occurred here, in order to
support a finding, beyond a reasonable doubt, that serious physical or emotional
harm will result.?
In
J.J.
v. Alaska
(Alaska 2001) 38 P.3d 7, a similar situation was presented involving the same
family (the mother's appeal). Parental rights were terminated based on
abandonment (due to lack of visits occasioned by the unclear case plan that did
not provide for visitation) and that adoption was in the children's best
interests. (Id.
at p. 8.) The Indian expert did not meet or speak with the mother (J.J.) or the
children, or the mother's counselors, and the file on which the expert relied
was incomplete, omitting much of mother's rehabilitative efforts. (Id.
at p. 10.) Mother abstained from alcohol, submitted to drug testing, completed
drug treatment and Alcoholics Anonymous to address substance **114
abuse, and was in a healthy, sober relationship. (Id.
at p. 9.)
Nevertheless,
the Indian expert concluded that return would be detrimental because remedying
the alcohol abuse problem was a separate issue from abandonment, based on
mother's lack of contact with the children, and the expert speculated that the
children would suffer additional trauma if mother regained custody because the
?risks? would continue. (J.J.
v. Alaska, supra,
38 P.3d at pp. 9-10.) The reversal there was thus grounded on expert's reliance
on outdated information, and the substantial progress made by mother to meet the
requirements of her case plan and establish a safe home for her children
(id.
at p. 11), circumstances not present here.
*1505
Father acknowledges that a contrary result occurred in the more recent case of
J.A.
v. Alaska
(Alaska 2002) 50 P.3d 395. There, the reviewing court concluded that the
experts' failure to meet with the parties was not determinative of the adequacy
of their expert opinion to support the termination of parental rights. The court
noted that it had previously held in C.J.,
supra,
that such interviews were not required in every case, and observed that both
experts were sufficiently apprised of the facts by their review of the social
services agency reports and the summaries of the testimony of other witnesses.
(J.A.,
supra,
at p. 400.)
A
similar result was reached in Marcia
V. v. Alaska
(Alaska 2009) 201 P.3d 496. In that case, the Alaska court reaffirmed its prior
decisions holding that ?pretrial interviews by the expert with the parties in a
termination case ?are not required in every case.? A review of state records and
summaries of relevant facts can be enough if they ?keep the experts' testimony
sufficiently grounded in the facts and issues of the case.? ? (Id.
at p. 507.)
[4][5]
We agree with the reasoning of the Alaska courts. The purpose of the Indian
expert's testimony is to offer a cultural perspective on a parent's conduct with
his or her child, to prevent the unwarranted interference with the parent-child
relationship due to cultural bias. (Guidelines, supra,
? D.3 and Commentary.) The Indian expert's testimony is directed to the question
of whether continued custody of the child by the parent or Indian custodian is
likely to result in serious emotional or physical damage to the child, and not
because the family did not conform to a decision-maker's stereotype of what a
proper family should be. (Guidelines, supra,
D.3(b), and Commentary.) Father does not point to any cultural evidence that his
behavior (including sexual abuse of a half-sibling) would be interpreted
differently in a cultural context, so knowledge of cultural practices would not
be helpful. In other words, unless interviews by the Indian expert with specific
parties is relevant to the purpose of the expert's testimony-i.e., whether
specific behavior patterns need to be placed in the context of Indian culture to
determine whether they are likely to cause serious harm-the failure to interview
the parents does not infect the trial court's judgment.
b.
There
Is Substantial Evidence to Support the ICWA Detriment Finding
[6][7]
We emphasize that neither parent objected to the admission into evidence of the
Indian expert's declaration, or the expert's qualifications, so we do not
address any specific challenge to the adequacy of the declaration, or the
*1506
investigation conducted by the expert. (See In
re Brian P.
(2002) 99 Cal.App.4th 616, 623, 121 Cal.Rptr.2d 326 [re adequacy of adoption
assessment].) Of course, while a parent may waive an objection to specific
evidence,**115
a claim that there is insufficient evidence to support the judgment is not
waived by a failure to object. (Ibid.)
FN6
FN6.
Had father's counsel objected to the admission of the expert's testimony or
declaration for lack of foundation due to inadequate investigation, we would
review for abuse of discretion. (People
v. Williams
(1997) 16 Cal.4th 153, 196, 66 Cal.Rptr.2d 123, 940 P.2d 710.)
[8][9]
Thus, the question for us to decide is whether there was substantial evidence to
support the trial court's finding, beyond a reasonable doubt, that continued
custody by the parents is likely to result in serious physical or emotional
damage to the child, that is, the ICWA detriment finding. We review the court's
ICWA detriment finding for substantial evidence. (In
re Barbara R., supra,
137 Cal.App.4th at p. 951, 40 Cal.Rptr.3d 687.) Under this standard, we do not
pass on the credibility of witnesses, attempt to resolve conflicts in the
evidence, or reweigh the evidence. Instead, we draw all reasonable inferences in
support of the findings, view the record favorably to the juvenile court's order
and affirm the order even if there is other evidence to the contrary.
(In
re Casey D.
(1999) 70 Cal.App.4th 38, 52-53, 82 Cal.Rptr.2d 426.) The appellant has the
burden of showing there is no evidence of a sufficiently substantial nature to
support the court's finding. (In
re L.Y.L.
(2002) 101 Cal.App.4th 942, 947, 124 Cal.Rptr.2d 688.)
[10]
The expert's opinion was but one factor considered by the trial court in
deciding, beyond a reasonable doubt, that continued custody by the parents would
result in serious physical or emotional damage to the child. The court
considered numerous reports and addenda prepared by the social worker, including
the adoption assessment and the Indian expert's opinion. The tribe, and the
tribe's social worker, was in agreement with the social worker's recommendation
to terminate parental rights. On multiple occasions when the post-permanency
hearing (? 366.3) was continued, all parties-including the parents-stipulated
that the permanent plan of adoption was appropriate.
The
reports submitted at the section 366.26 hearing included information about the
father's failure to avail himself of reunification services prior to the
adjudication of dependency. He failed to submit to drug testing despite his
history of substance abuse, and a report from Riverside Department of Mental
Health dated November 8, 2007, indicated that father was currently abusing
controlled substances, rendering him unable to benefit from *1507
psychotherapy.FN7
He continued to deny molesting his stepdaughter, although he acknowledged his
1992 convictions for molesting other children. He also denied a history of
substance abuse despite his conviction for transporting methamphetamine. He also
insisted that his status as a sex offender did not prohibit him from having
contact with children. He did not initiate any reunification services on his own
after the court denied services at the disposition hearing.
FN7.
This information was summarized in the Declaration prepared by the Indian expert
whose opinion was offered at the jurisdiction/
Mother
initiated some services, but she was terminated from counseling because she
denied using drugs or alcohol,FN8
smelled of alcohol when she appeared for therapy, and she was terminated from
parenting **116
classes due to excessive absences. More importantly, she maintained her
relationship with father, a registered sex-offender, allowing him to have
contact with her children despite the fact his parole conditions prohibited
contact with the children, which gave rise to the sexual abuse allegations as to
her oldest daughter, and then blamed her child for the molestation allegation.
Even after the molestation allegations resulted in the removal of her older
children, mother maintained her relationship with father, placing M.B. at
risk.
FN8.
This denial is remarkable since two of her older children were born with
fetal-alcohol syndrome.
In
these significant respects, this case is distinguishable from the Alaska
decisions on which father relies, where the judgments terminating parental
rights were reversed. Especially in the case of J.J.
v. Alaska, supra,
38 P.3d 7, where the social worker's reports were incomplete (omitting
information about mother's rehabilitation efforts), the lack of an independent
investigation rendered the Indian expert's opinion meaningless. After all, the
opinion of an expert is no better than the reasons upon which it is based.
(People
v. Gardeley
(1996) 14 Cal.4th 605, 618, 59 Cal.Rptr.2d 356, 927 P.2d 713.) However, here,
the social worker's reports were not incomplete or inaccurate and the Indian
expert reviewed them, in addition to visiting the child in his placement,
interviewing the child's caregiver, as well as the Indian social worker and the
DPSS social worker. The facts of this case are more similar to the situations
presented in J.A.
v. Alaska, supra,
50 P.3d at page 400, and Marcia
V. v. Alaska, supra,
201 P.3d at page 507, where the judgments terminating parental rights were
affirmed.
The
evidence adduced at the section 366.26 hearing, even without the opinion of the
Indian expert, supported the court's finding, beyond a reasonable doubt, that
continued custody by the parents was likely to result in serious physical or
emotional damage to the child.
*1508
DISPOSITION
The
judgment is affirmed.
We
concur: HOLLENHORST and McKINSTER, JJ.