|
(Cite
as: 175 Cal.App.4th 1031, 96 Cal.Rptr.3d
706) |
Court
of Appeal, Third District, California.
In
re T.S., a Person Coming Under the Juvenile Court Law.
Sacramento
County Department of Health and Human Services, Plaintiff and
Respondent,
v.
M.S.,
Defendant and Appellant.
No.
C059718.
July
14, 2009.
Certified
for Partial Publication.FN*
FN*
Pursuant to California Rules of Court, rule 8.1110, this opinion is certified
for publication with the exception of parts II and III of the
DISCUSSION.
**707
Nicole Williams, under appointment by the Court of Appeal for Defendant and
Appellant.
Robert
A. Ryan, Jr., County Counsel, and Scott M. Fera, Deputy County Counsel for
Plaintiff and Respondent.
SIMS,
Acting P.J.
*1033
Appellant, the father of the minor, appeals from the juvenile court's order
terminating parental rights. (Welf. & Inst.Code, ?? 366.26, 395.)
FN1
FN1.
Undesignated statutory references are to the Welfare and Institutions
Code.
Appellant
claims that a statutory exception to adoption applied because the minor's Indian
tribe had identified guardianship as the permanent plan for the minor. (?
366.26, subd. (c)(1)(B)(vi)(II).) In the published portion of the opinion, we
reject this contention.
*1034
Appellant also claims his trial attorney rendered ineffective assistance of
counsel because she did not argue that another exception to adoption applied
based on substantial interference with the minor's connection to his tribal
community. (? 366.26, subd. (c)(1)(B)(vi)(I).) In addition, appellant maintains
he received ineffective assistance of counsel because his attorney failed to
argue that the Department was required to seek a criminal conviction exemption
for relatives selected by the minor's tribe to be guardians for the
minor.
In
the unpublished portion of the opinion, we reject appellant's claims of
ineffective assistance of counsel. We therefore affirm the order terminating
parental rights.
FACTUAL
AND PROCEDURAL BACKGROUND
A
dependency petition was filed in Shasta County in August 2005 concerning the
two-day-old minor, alleging the minor's mother tested positive for
methamphetamine when the minor was born and admitted intravenous drug use on one
occasion during her pregnancy. It also was alleged that appellant admitted past
drug use and had a conviction for public intoxication. The petition further
alleged the parents' home was cluttered, they did not have the items necessary
to care for the minor, and they did not consistently demonstrate proper care of
the minor while he was still in the hospital.
The
minor's mother had Indian heritage through the Pit River Tribe (the Tribe), and
prior to the jurisdictional hearing, the Tribe filed a Notice of Intervention,
informing the court that the minor is an **708
Indian child and the Tribe was appearing in the proceedings.
The
allegations in the petition were sustained. Prior to the dispositional hearing,
the matter was transferred to Sacramento County. In January 2006, a
representative of the Tribe appeared at the transfer-in hearing and, in
accordance with her recommendation, the minor was placed with the parents.
FN2
At the dispositional hearing in April 2006, the parents were ordered to comply
with the case plan recommended by the Sacramento County Department of Health and
Human Services (the Department).
FN2.
Thereafter, the minor was removed briefly from the parents pursuant to a
supplemental petition, which was subsequently dismissed.
By
the time of the review hearing in October 2006, appellant was no longer living
with the minor and the minor's mother, and he had decided he *1035
did not want to participate in further reunification services. At the review
hearing, the juvenile court ordered that the minor remain in the mother's care
and terminated appellant's services.
In
July 2007, a supplemental petition was filed based on the mother's continued
noncompliance with substance abuse treatment and her failure to take the minor
to scheduled monthly check-ups, and because she allowed appellant to have
unauthorized contact with the minor. The minor was placed in a foster home, and
the social worker recommended the mother's services be terminated.
Meanwhile,
the Tribe was in the process of passing a resolution for placement of the minor
in the home of maternal cousins who were active members of the Tribe, although
they did not have an established relationship with the minor. Although the
social worker had concluded that the minor was adoptable and the maternal
cousins were willing to adopt, the Tribe did not agree with a permanent plan of
adoption, believing ?[g]uardianship [wa]s the more appropriate permanent plan to
avoid severing the parental rights of both parents.? The Tribe wanted the minor
placed in a guardianship with relatives.
An
evaluation by an Indian Child Welfare Act (ICWA) expert concluded that active
efforts had been made to provide remedial and rehabilitative services to the
family and that the minor would suffer serious emotional or physical damage if
returned to parental care. However, the expert felt it was in the family's best
interest to reunify as an Indian family, and she recommended guardianship as the
permanent plan. She explained: ?It is not unknown among Indian nations to allow
their members who are struggling to achieve resolution to adverse circumstances
every possible opportunity to succeed. In this case [the mother] has struggled
to be successful in recovery, and is committed to continuing to pursue sobriety.
In order to allow her future opportunities to reunify her family, the plan of
long-term guardian[ ]ship is recommended. From a tribal perspective, it is in
the family's best interest to reunify as an Indian family. Adoption would
potentially remove the possibility that the child and his parent(s) could
reunify as a family.?
The
juvenile court sustained the allegations in the supplemental petition. While the
dispositional hearing was pending, an assessment for placement of the minor with
the maternal cousins was commenced. The cousins had assumed guardianship of
three other children and, reportedly, ?there ha[d] been no concerns regarding
their ability to care for the children in their home.?
**709
*1036
However, both cousins had criminal histories, which would require an exemption
through ?the Kinship Unit.?
The
husband's criminal record included misdemeanor convictions between 1991 and 1996
for possession of a controlled substance (Health & Saf.Code, ? 11377, subd.
(a)), possession of a dangerous weapon (? 12020, subd. (a)), being under the
influence of a controlled substance (Health & Saf.Code, ? 11550, subd. (a)),
petty theft (? 484, subd. (a)); carrying a firearm in a vehicle (? 12034, subd.
(a)), receiving stolen property (? 496, subd. (a)), two counts of corporal
injury on a spouse or cohabitant (? 273.5, subd. (a)), and battery (? 242), as
well as a 2000 violation for assault with a deadly weapon (? 245, subd. (a)(1))
which, according to the social worker's report, was ?[l]ikely? a felony
conviction.
The
wife's criminal record contained misdemeanor convictions in 2001 for tampering
with a vehicle (Veh.Code, ? 10852) and driving without a valid license.
(Veh.Code, ? 12500, subd. (a).) Nonetheless, the social worker recommended that
the minor be placed in the cousins' home upon receipt of a resolution to this
effect by the Tribe ?and/
At
the dispositional hearing in November 2007, the juvenile court terminated the
mother's services and set the matter for a hearing pursuant to section 366.26 to
select and implement a permanent plan for the minor. The court noted that an
assessment of the maternal cousins for placement was underway but had not been
completed, nor was there a resolution from the Tribe concerning the
placement.
According
to the report for the section 366.26 hearing, which was prepared in February
2008, the minor's foster parents were not interested in adoption or
guardianship. Meanwhile, the parents had not visited the minor since shortly
after the last hearing, in November.
In
March 2008, on the date set for the section 366.26 hearing, the juvenile court
continued the hearing for 90 days and ordered the Tribe to either submit a
written resolution concerning placement or personally appear to explain its
position.
Shortly
thereafter, the Tribe passed a resolution establishing placement with the
maternal cousins as ?the first order of placement preference? for the minor and
?approv[ing] the placement as a long term guardianship.? *1037
However, the Kinship Unit ultimately declined to approve the placement of the
minor with the maternal cousins due to their criminal histories. The social
worker recommended that the minor not be placed with the maternal cousins, as
they would not be able to pass a guardianship assessment, and that a permanent
plan of adoption be ordered.
The
Tribe continued to recommend placement of the minor with the maternal cousins.
The ICWA expert also continued to recommend a plan of guardianship with the
maternal cousins, based on the fact that they had demonstrated their ability to
provide a safe, nurturing home and had been approved for placement in the past.
The expert opined: ?The [minor's] best potential for healthy development as an
Indian person lie[s] with his ongoing connection with his family and his tribe.
Such an arrangement would also preserve the [minor's] family bond, an element
that is essential for the healthy development of his identity.?
At
the section 366.26 hearing, the ICWA expert testified consistently with these
views. She noted that the Tribe felt safe having the minor placed with the
maternal cousins despite their criminal records, and that the Tribe ?would know
their tribal members better than anyone.? The expert**710
acknowledged she had never met the cousins or been to their home, and that her
recommendation was based solely on the documented evidence she had received. She
testified that she would defer to the tribal council's resolution in every
case.
An
adoption social worker testified that the minor was generally adoptable and an
Indian foster family agency had identified a placement for him in which one of
the foster parents was a member of the Tribe. The family was ?open to
considering? adoption of the minor. The social worker testified she would be
able to find another Indian family to adopt the minor if this particular family
was not willing to do so, although it might take longer to find a family
affiliated with the Tribe.
The
mother argued that an exception to adoption applied because the Tribe had
identified guardianship as the permanent plan that would meet their prevailing
social and cultural standards and protect the minor's best interests as an
Indian child. Appellant joined in this argument.
The
juvenile court concluded it had discretion to find adoption was in a child's
best interests even though a tribe has identified guardianship or *1038
long term foster care with a relative as the preferred permanent plan. The court
ruled ?that is the situation that we have in this case,? noting that the
Department had located a placement with a member of the minor's Tribe and would
place the minor with an Indian family if this placement did not work out. The
court ordered a permanent plan of adoption and terminated parental
rights.FN3
FN3.
Appellant filed an application for rehearing, asserting the juvenile court erred
by terminating parental rights despite the Tribe's resolution for placement of
the minor with the maternal cousins in guardianship. The application for
rehearing was denied.
DISCUSSION
I
Appellant's
first claim is that the juvenile court should have applied an exception to
adoption because the minor's tribe identified guardianship as the permanent plan
for the minor. (? 366.26, subd. (c)(1)(B)(vi)(II).) We disagree.
We
review the juvenile court's ruling declining to find an exception to termination
of parental rights for abuse of discretion. (In
re Jasmine D.
(2000) 78 Cal.App.4th 1339, 1342, 93 Cal.Rptr.2d 644.) ? ? ?The appropriate test
for abuse of discretion is whether the trial court exceeded the bounds of
reason. When two or more inferences can reasonably be deduced from the facts,
the reviewing court has no authority to substitute its decision for that of the
trial court.? ? ? (Id.
at p. 1351, 93 Cal.Rptr.2d 644.)
[1]
? ?At the selection and implementation hearing held pursuant to section 366.26,
a juvenile court must make one of four possible alternative permanent plans for
a minor child.... The
permanent plan preferred by the Legislature is adoption.
[Citation.]? [Citations.] If the court finds the child is adoptable, it
must
terminate parental rights absent circumstances under which it would be
detrimental to the child.? (In
re Ronell A.
(1996) 44 Cal.App.4th 1352, 1368, 52 Cal.Rptr.2d 474.)
Before
the juvenile court may find an exception to adoption for an otherwise adoptable
child, a parent must establish a ?compelling reason for determining that
termination would be detrimental to the child? due to one of several specified
circumstances. (? 366.26, subd. (c)(1)(B).) One such exception is when ?[t]he
child is an Indian child and there is a compelling reason for determining that
termination of parental rights would not be in the best **711
interest of the child, including, but not limited to: [?] ... [?] [t]he 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).)
[2][3]
*1039
The parent has the burden of establishing the existence of any circumstance that
constitutes an exception to termination of parental rights. (In
re Cristella C.
(1992) 6 Cal.App.4th 1363, 1372-1373, 8 Cal.Rptr.2d 342.) ?Because a section
366.26 hearing occurs only after the court has repeatedly found the parent
unable to meet the child's needs, it is only in an extraordinary case that
preservation of the parent's rights will prevail over the Legislature's
preference for adoptive placement.? (In
re Jasmine D., supra,
(2000) 78 Cal.App.4th 1339, 1350, 93 Cal.Rptr.2d 644.)
[4]
Here, it is not disputed that the minor was adoptable. Thus, for the juvenile
court to order a permanent plan other than adoption based on the proffered
exception, it was required to find a compelling reason for determining that
adoption would be detrimental to the minor because the Tribe had identified
guardianship as the permanent plan and, thus, it would not be in the minor's
best interest to terminate parental rights.
Appellant
maintains that, regardless of the viability of the maternal cousins as a
placement for the minor, the juvenile court was required to order a permanent
plan of guardianship because this was the Tribe's recommendation.
However,
a contrary conclusion was reached by the Court of Appeal for the Fifth District
in In
re A.A.
(2008) 167 Cal.App.4th 1292, 84 Cal.Rptr.3d 841. In that case, at the section
366.26 hearing, the children's tribe sought a permanent plan of guardianship
with relatives from whom the children previously had been removed at the
relatives' request. The children had experienced several placement changes
during the dependency proceedings and had ?attachment-disorder issues and
developmental delays.? (Id.
at p. 1302, 84 Cal.Rptr.3d 841.) The children had been placed in a prospective
adoptive home in which one of the prospective adoptive parents was a member of
another tribe. (Id.
at p. 1303, 84 Cal.Rptr.3d 841.) The children had made gradual progress with
their mental health issues in this placement and had begun to attach to their
caretakers. (Id.
at p. 1308, 84 Cal.Rptr.3d 841.) The juvenile court ordered a permanent plan of
adoption despite the tribe's identification of guardianship as the desired
permanent plan.
The
appellate court concurred, concluding that, ?although guardianship may have
served the [t]ribe's interests, the court, in assessing the children's best
interests, was not compelled to agree with the [t]ribe.? (In
re A.A., supra,
167 Cal.App.4th at p. 1324, 84 Cal.Rptr.3d 841.) The court noted: ?The [t]ribe'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 *1040
evidence of the children's attachment problems, may similarly have persuaded the
court that the [t]ribe'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 [t]ribe's identification of guardianship as a
permanent plan for the children was not a compelling reason for finding that
termination would be detrimental.? (Id.
at p. 1325, 84 Cal.Rptr.3d 841.)
**712
[5] We agree that a juvenile court is not obligated to adopt the permanent plan
designated by a child's tribe without conducting an independent assessment of
detriment.FN4
The exceptions to adoption relating to Indian children, like the other
enumerated exceptions to adoption, are contained in section 366.26, subdivision
(c)(1)(B), and, therefore, apply only if the described circumstances are present
and
there is a compelling reason for determining that termination of parental rights
would be detrimental to the child as a result of such circumstances. (See fn. 4,
ante.)
Had the Legislature intended to preclude the court from ordering a permanent
plan of adoption when a tribe has identified another permanent plan, it could
have placed this provision in the next subdivision of section 366.26,
subdivision (c)(2), which enumerates circumstances under which the juvenile
court ?shall not terminate parental rights,? and includes other provisions
involving Indian children. (See fn. 4, ante.)
Instead, the provision was added to a subdivision that contains plain,
unambiguous language conferring discretion upon the juvenile court to reject the
exceptions in the absence of compelling evidence of detriment.
FN4.
The portions of section 366.26 addressed by appellant's argument are as
follows:
?(c)(1)
... the court shall terminate parental rights unless either of the following
applies:
?[?]
... [?]
?(B)
The court finds a compelling reason for determining that termination would be
detrimental to the child due to one or more of the following
circumstances:
?[?]
... [?]
?(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 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.
?[?]
... [?]
?(2)
The court shall not terminate parental rights if:
?[?]
... [?]
?(B)
In the case of an Indian child:
?(i)
At the hearing terminating parental rights, the court has found that active
efforts were not made as required in Section 361.7.
?(ii)
The court does not make a determination at the hearing terminating parental
rights, supported by evidence beyond a reasonable doubt, including testimony of
one or more ?qualified expert witnesses' as defined in Section 224.6, that the
continued custody of the child by the parent is likely to result in serious
emotional or physical damage to the child.?
Contrary
to appellant's claim, the legislative history regarding this statutory exception
does not cause us to abandon the reasoning of In
re A.A., supra,
167 Cal.App.4th 1292, 84 Cal.Rptr.3d 841. Appellant relies on a statement in the
Senate Judiciary *1041
Committee's analysis of Senate Bill No. 678, which added the exception to
adoption at issue here, that the provision ?would essentially empower a tribe to
veto the termination of parental rights by identifying a permanent living
arrangement for the child.? (Sen. Com. on Judiciary, Analysis of Sen. Bill No.
678, comment (2005-2006 Reg. Sess.) Aug. 23, 2005, p. 22.) However, this
statement is lodged in a paragraph with other language that suggests the
juvenile court's determination is discretionary. Thus, the analysis states that,
under the provision, the court ?may
... find a compelling reason for not terminating parental rights? when the
child's tribe identifies a different permanent plan and the court would be
required ?to consider
the alternatives to termination of parental rights provided by a tribe.?
(Ibid.,
italics added.) When evaluated in **713
this context, the single, fleeting reference in the legislative history to a
tribe's ?veto power? is insufficient to negate the meaning of the statute
derived from its plain language and its overall design.
[6]
Having concluded that a juvenile court retains discretion to reject the
permanent plan identified by a child's tribe, we conclude that the court, here,
exercised its discretion properly. The only prospective guardians that had been
identified by the Tribe were the maternal cousins, whose criminal records had
resulted in their rejection as a viable placement option. No other relatives had
been identified as an appropriate placement for the minor, and the Tribe did not
have any licensed foster families that could care for the minor. In sum, there
were no appropriate families that were willing to assume guardianship of the
minor.
Moreover,
the ICWA expert had explained that the Tribe's identification of guardianship as
the preferred permanent plan stemmed from its interest in preserving the minor's
connection to his family and the Tribe. But, according to the report for the
section 366.26 hearing, the minor's parents had stopped visiting him. And, as
there were no family or tribal members that had been found appropriate for
placement, there was no basis for believing that guardianship would be more
likely to achieve these goals than would adoption by an Indian family. Under
such circumstances, it was well within the juvenile court's discretion to
decline to find an exception to adoption based on the Tribe's identification of
guardianship as the permanent plan.
II-IIIFN**
FN**
See footnote *, ante.
*1042
DISPOSITION
The
juvenile court's orders are affirmed.
We
concur: RAYE and CANTIL-SAKAUYE, JJ.