In re Alexandria P. ( 2016 )

Filed 7/8/16
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
In re ALEXANDRIA P., a Person Coming B270775
Under the Juvenile Court Law. (Los Angeles County
Super. Ct. No. CK58667)
LOS ANGELES COUNTY
DEPARTMENT OF CHILDREN AND
FAMILY SERVICES,
Plaintiff and Respondent,
v.
J.E.,
Defendant and Respondent;
R.P., et al.,
Objectors and Appellants;
Choctaw Tribe of Oklahoma,
Intervenor and Respondent.
APPEAL from a judgment of the Superior Court of Los Angeles County, Rudolph
A. Diaz, Judge. Affirmed.
Roberto Flores; Wilkinson Walsh + Eskovitz, Lori Alvino McGill, for Objectors
and Appellants.
Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County
Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.
Law Offices of Joanne Willis Newton, Joanne D. Willis Newton, under
appointment by the Court of Appeal, for Defendant and Respondent.
Christopher Blake, under appointment by the Court of Appeal, for minor
Alexandria P.
Melissa L. Middleton, for Intervenor and Respondent.
Munger, Tolles & Olson, James C. Rutten, Jordan D. Segall, Wesley T.L. Burrell,
Varun Behl, for Advokids, Center for Adoption Policy and Professors Joan H. Hollinger,
Elizabeth Bartholet, and Barbara Bennett Woodhouse, as Amici Curiae.
_______________________
2
INTRODUCTION
For the third time this case comes before us on the issue of whether the lower
court has correctly ordered an Indian child, Alexandria P., to be placed with her extended
family, Ken R. and Ginger R. in Utah, after concluding that Alexandria’s foster parents,
de facto parents, Russell P. and Summer P., failed to prove by clear and convincing
evidence that there was good cause to depart from the adoptive placement preferences set
forth in the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq.).1
We have twice remanded the matter because the lower court used an incorrect
standard in assessing good cause. The dependency court has now correctly applied the
law governing good cause, considering the bond Alexandria has developed over time
with the P.s, as well as a number of other factors related to her best interests. Those other
factors include Alexandria’s relationship with her extended family and half-siblings; the
capacity of her extended family to maintain and develop her sense of self-identity,
including her cultural identity and connection to the Choctaw tribal culture; and the P.s’
relative reluctance or resistance to foster Alexandria’s relationship with her extended
family or encourage exploration of and exposure to her Choctaw cultural identity.
Because substantial evidence supports the court’s finding that the P.s did not prove
by clear and convincing evidence that there was good cause to depart from the ICWA’s
placement preferences, we affirm.
PROCEDURAL BACKGROUND
We briefly review the key procedural events that have brought this case up to the
current appeal.
1 All statutory references are to 25 U.S.C., unless otherwise indicated.
3
Initial good cause hearing and decision (Judge Pellman)
The following excerpt from our 2014 opinion (In re Alexandria P. (2014) 228
Cal. App. 4th 1322 (Alexandria I)) summarizes the initial history of the case: “A 17-
month-old Indian child was removed from the custody of her mother, who has a lengthy
substance abuse problem and has lost custody of at least six other children, and her
father, who has an extensive criminal history and has lost custody of one other child. The
girl’s father is an enrolled member of an Indian tribe, and the girl is considered an Indian
child under the ICWA.[2] The tribe consented to the girl’s placement with a non-Indian
foster family to facilitate efforts to reunify the girl with her father. The girl lived in two
foster homes before she was placed with de facto parents at the age of two. She bonded
with the family and has thrived for the past two and a half years.
“After reunification efforts failed, the father, the tribe, and the Department of
Children and Family Services (Department) recommended that the girl be placed in Utah
with a non-Indian couple who are extended family of the father. The de facto parents (de
facto parents) argued good cause existed to depart from the ICWA’s adoptive placement
preferences and it was in the girl’s best interests to remain with de facto family. The
child’s court-appointed counsel argued that good cause did not exist. The court ordered
the girl placed with the extended family in Utah after finding that de facto parents had not
proven by clear and convincing evidence that it was a certainty the child would suffer
emotional harm by the transfer.” (Alexandria I, supra, 228 Cal.App.4th at pp. 1328-
1329.) The de facto parents appealed, and this court issued a writ of supersedeas staying
the court’s order pending resolution of the appeal, with expedited briefing. (In re A.P.
(Mar. 4, 2014, B252999) [order].)
2 At the time of our 2014 opinion, Alexandria was eligible for enrollment as a
member of the Choctaw Nation of Oklahoma. Since that time, she has become an
enrolled member of the tribe.
4
Court of Appeal opinion reversing and remanding
In an opinion filed August 15, 2014, we reversed and remanded for the lower court
to determine under the appropriate standard whether de facto parents could show good
cause to depart from the placement preferences of the ICWA. (Alexandria I, supra, 228
Cal. App. 4th 1322.) Our opinion acknowledged that over a year had passed since the
earlier good cause hearing, and the court was free to consider facts and circumstances
that arose since the filing of the first appeal. (Id. at p. 1357.) Remittitur issued on
November 7, 2014.
Additional good cause hearing and decision (Judge Trendacosta)
On remand, the case was assigned to Judge Trendacosta, who held a hearing
spanning five days in September 2015 to determine whether good cause existed to depart
from the ICWA’s placement preferences. The parties submitted written closing
arguments on September 16, 2015, and Judge Trendacosta issued a November 3, 2015
statement of decision concluding that the de facto parents had not proven good cause by
clear and convincing evidence.
Peremptory writ and remand
The P.s again sought a supersedeas writ staying Judge Trendacosta’s order to
transfer Alexandria to the R.s’ home in Utah. On November 12, 2015, we issued an order
notifying the parties we were considering treating the petition for writ of supersedeas as a
petition for writ of mandate, and issuing a peremptory writ in the first instance vacating
the court’s November 3, 2015 order and directing the court to apply the correct burden of
proof. We explained the lower court’s error by pointing out that Judge Trendacosta’s
written decision “described the burden on the de facto parents in language that is
identical, word-for-word, to the language we disapproved as an incorrect statement of law
5
in the prior appeal.” (In re Alexandria P. (Nov. 12, 2015, B268111) [order].) Both Judge
Pellman and Judge Trendacosta stated the de facto parents had not proven by clear and
convincing evidence “that either the child currently had extreme psychological or
emotional problems or would [definitively] have them in the future.” In contrast, our
Alexandria I opinion clarified that de facto parents needed to show “by clear and
convincing evidence that there is a significant risk that a child will suffer serious harm as
a result of a change in placement.” (Alexandria I, supra, 228 Cal.App.4th at p. 1354.)
After considering letter briefs filed by the parties, we directed the dependency
court to vacate its November 3, 2015 order, and enter a new placement order based on
application of the burden of proof set forth in Alexandria I, supra, 228 Cal.App.4th at
page 1354. We considered the nature of the error, the already lengthy dependency in this
case, and the need for a prompt and permanent resolution of the issue of placement. We
also emphasized that time was of the essence, directing the Presiding Judge of the
Juvenile Court of Los Angeles County to ensure a judicial officer was promptly assigned
to the case, and directing the lower court to resolve the issue of placement within 30 days
of issuance of a remittitur, absent extraordinary circumstances. We stated that we were
expressing no opinion on how the issue of placement should be resolved. (R.P. v.
Superior Court (Nov. 25, 2015, B268111) [nonpub. opn.].) On January 29, 2016, we
dismissed as moot the appeal of Judge Trendacosta’s November 3, 2015 order, returning
jurisdiction to the lower court.
Third good cause decision (Judge Diaz)
The case was ultimately assigned to Judge Diaz, who rendered a decision from the
bench on March 8, 2016. Judge Diaz concluded the de facto parents had not shown good
cause to depart from the ICWA’s placement preferences, and he ordered Alexandria
removed from the custody of the P.s and placed with the R.s in accordance with the
ICWA.
6
Current Appeal
The P.s appealed on March 9, 2016, and petitioned for a writ of supersedeas the
following day. This court granted a temporary stay on March 11, 2016, and on March 18,
2016, we denied the petition for writ of supersedeas. In early April, we granted calendar
preference and set an expedited briefing schedule, with oral arguments taking place on
June 10, 2016.3
FACTUAL BACKGROUND4
A. Facts preceding first good cause hearing
In order to give adequate background information, we repeat an excerpt from our
2014 opinion summarizing the case history up to Judge Pellman’s decision:
“Alexandria’s Child Welfare History
“Alexandria was detained from her parents and placed with a foster family when
she was 17 months old, based on concerns about her parents’ ability to care for her in
3 Due to the expedited schedule, the parties and this court have relied upon the
exhibits filed in connection with the writ proceedings following Judge Trendacosta’s
decision (B268111, seven volumes of exhibits filed by minor), and the writ proceedings
following Judge Diaz’s decision (B270775, four volumes of exhibits filed by the P.s, plus
one volume of expedited reporter’s transcripts). None of the parties have raised an
objection to the adequacy of the record for appellate review.
4 When the parties present either contradictory evidence or evidence from which
different inferences may be drawn, the substantial evidence standard of review requires
the reviewing court to resolve all contradictions and draw all inferences in favor of the
judgment or order being appealed. (Fresno County Dept. of Children & Family Services
v. Superior Court (2004) 122 Cal. App. 4th 626, 642-643 (Fresno County).)
7
light of their histories of substance abuse, child welfare referrals, and criminal activity.
Alexandria reportedly was moved to a different foster family after suffering a black eye
and a scrape on the side of her face.[5] The P.s were Alexandria’s third foster care
placement, initially arranged in December 2011 as a ‘respite care’ placement[6] that
evolved into a long-term foster care placement. The P.s were aware that Alexandria was
an Indian child and her placement was subject to the ICWA.
“By the time Alexandria was placed with the P.s in December 2011, her extended
family in Utah, the R.s, were aware of dependency proceeding and had spoken to
representatives of the tribe about their interest in adopting Alexandria. The tribe agreed
to initial foster placement with the P.s because it was close to father as he worked on
reunification. If reunification services were terminated, the tribe recommended
placement with the R.s in Utah.
“Alexandria’s Emotional Health
“Alexandria’s first months after being placed with the P.s were difficult. She was
weepy at times, did not want to be held, and had difficulty differentiating between
strangers and caregivers, indiscriminately calling people ‘mommy’ or ‘daddy.’ These
behaviors were considered signs of a ‘reactive attachment, the disinhibitive type.’ The
P.s addressed Alexandria’s attachment issues with consistency and loving care. They did
not ask the social worker for a therapy referral, understanding the issues to be ones they
could work out on their own. After a few months, Alexandria’s behavioral issues
5 “Lauren Axline, a rebuttal witness called by the P.s, was the only witness who
testified about the transfer from Alexandria’s first foster family to her second placement.
Department reports indicate that Alexandria’s foster placement changed twice between
April and December 2011, but do not provide any reason for the changes in placement.”
6“The P.s agreed to care for Alexandria while her second foster family went on
vacation.”
8
resolved, and she formed a strong primary bond and attachment with the entire P. family,
viewing the parents as her own parents and the P. children as her siblings.
“On September 17, 2012, Alexandria began play therapy with Ruth Polcino, a
therapist with United American Indian Involvement. Sessions took place weekly in the
P. home. In a December 31, 2012 letter to the Department’s social worker Javier,
Polcino noted Alexandria’s ‘happiness, playfulness, sense of safety, and positive rapport
with her foster parents and siblings’ and concluded that her consistent, loving experience
in the foster home appears to have fostered a healthy and secure attachment. Notably, the
letter concludes ‘Based on witnessing Alexandria in the [P.s’] household, and based on
her history of repeated separation from caretakers, this therapist highly recommends that
Alexandria be allowed to stay in touch with the [P.] family, even after she is placed with
her Aunt [Ginger R.] in Utah. This recommendation is not intended to interfere with the
current adoption, but rather to allow Alexandria to stay in touch with the [P.] family as
extended family who care about her.’
“An April 3, 2013 report notes the significant advancements made by Alexandria
during her placement with the P.s, as well as her ability to form a healthy attachment to
new caretakers: ‘Alexandria’s ability to re-attach to a new caretaker is stronger because
of the stability that the [P.] family has provided for her. The behaviors that she presented
with initially when placed with the [P.] family were much more indicative of a possible
attachment disorder (i.e., the indiscriminate attachment she demonstrated with strangers).
Since then, these behaviors have been almost entirely extinguished. In their place are
more appropriate behaviors that are evidence of a more healthy and secure
attachment . . . .’
“Father’s Reunification Efforts
“Alexandria’s father successfully complied with reunification services for more
than six months, progressing to such an extent that he was granted unmonitored eight-
hour visits. By June 2012, the Department reported a substantial probability he would
9
reunify with Alexandria within the next six months. Shortly thereafter, however, father’s
emotional state deteriorated dramatically. He separated from his new wife, left
California, and did not visit Alexandria after July 28, 2012. By September 2012, he had
communicated to the Department that he no longer wished to continue reunification
services.
“The R. Family
“Because Ginger R.’s uncle is Alexandria’s paternal step-grandfather, the tribe
recognizes the R.s as Alexandria’s extended family. The R.s have an ongoing
relationship with Alexandria’s half-sister, Anna, who visits the R.s on holidays and for a
week or two during the summer. Anna and Alexandria have the same paternal
grandmother (who has since passed away) and step-grandfather, and the step-grandfather
has designated the R.s to care for Anna if he should become unable to care for Anna.
“The R.s expressed their interest in adopting Alexandria as early as October 2011.
They were initially told that to avoid confusing Alexandria, they should not contact her
while father attempted to reunify. If reunification efforts failed, they were the tribe’s first
choice for adoption. The family has approval for Alexandria to be placed with them
under the Interstate Compact on the Placement of Children (ICPC, Fam. Code, § 7900 et
seq.). The R.s first visited Alexandria shortly after the court terminated father’s
reunification services. Since then, they video chat with Alexandria about twice a week
and have had multiple in-person visits in Los Angeles. The P.s refer to the R.s as family
from Utah. At one point, when Alexandria asked if she was going to Utah, the P.s
responded that they did not know for sure, but it was possible. Russell and Summer P.
testified that before and following a recent visit by the R.s, most likely in June 2013,
Alexandria was upset and said she did not want to visit with the R.s and did not like it
when they came to visit. Russell P. acknowledged that the change in Alexandria’s
feelings coincided with the birth of a new baby in the P. family and a transition to a new
therapist for Alexandria.
10
“The P. Family
“Alexandria has lived with the P.s for over two and a half years, beginning in
December 2011. By all accounts, they have provided her with clear and consistent rules,
and a loving environment. Alexandria is bonded to the P.s, and has a healthy attachment
to them. The Department consistently reminded the P.s that Alexandria is an Indian child
subject to the ICWA placement preferences. At some point after father’s reunification
efforts failed, the P.s decided they wanted to adopt Alexandria. They discussed the issue
with the Department social worker, who advised them that the tribe had selected the R.s
as the planned adoptive placement.
“Transition Planning
“As ordered by the court on April 12, 2013, the Department arranged a conference
call to discuss a transition plan in anticipation of a possible court order directing
placement with the R.s. The call lasted 90 minutes and included the P.s in Los Angeles;
the R.s from Utah; Ruth Polcino, Alexandria’s therapist at United American Indian
Involvement; Polcino’s supervisor, Jennifer Lingenfelter; Alexandria’s attorney, Kerri
Anderson; Department social worker Roberta Javier, as well as two other Department
employees. The participants agreed on a transition plan that involved a relatively short
transition, with both families meeting for breakfast or at a park, explaining to Alexandria
that she is going to live with the R.s, who are family who love Alexandria very much and
will take good care of her. The P.s would reassure Alexandria that they love her and will
always be a part of her family.” (Alexandria I, supra, 228 Cal.App.4th at pp. 1330-
1333.)
11
Appeal of Judge Pellman’s Decision
After the good cause hearing, Judge Pellman issued a written order concluding
that the P.s had not demonstrated good cause to depart from the ICWA’s placement
preferences. The P.s. appealed, and on August 15, 2014, we published a decision
reversing and remanding the matter for a new good cause hearing. (Alexandria I, supra,
228 Cal. App. 4th 1322.)
B. Facts preceding second good cause hearing
While the P.s’ first appeal of Judge Pellman’s decision was pending, several
disputes arose between the parties. In March 2014, the P.s insisted that they must be
present for Alexandria’s visits with the R.s, despite the Department clarifying that
unmonitored visits were permitted. After the P.s unsuccessfully sought Court of Appeal
intervention to prevent the R.s from taking Alexandria to Disneyland, Judge Pellman
ordered that Alexandria’s monthly visits with the R.s would remain unmonitored and
would be in accordance with her schedule (around things like naptime).7 The R.s had a
four-hour visit with Alexandria at Disneyland, but after Alexandria was delayed in
returning home because the social worker was stuck in traffic, the P.s refused to allow
another visit the following day. In July 2014, Alexandria’s therapist, Stephanie Wejbe,
sought to transition Alexandria’s play therapy with the P. family to individual sessions
outside of the home. The therapist noted that she had been expressing concern in her
written reports since October 2013 about distractions interfering with Alexandria’s
therapy and gave examples of Summer P. limiting or interfering with therapy. When the
Department brought the matter to the court’s attention, the P.s opposed any changes,
arguing that the court had never ordered individual therapy for Alexandria, and sessions
outside the home would cause her anxiety. Judge Pellman set the matter for a subsequent
7 Pursuant to Evidence Code sections 452, subdivision (d)(1), and 459, subdivision
(a), we take judicial notice of minute orders dated March 19, 2014, and March 20, 2014.
12
hearing. Also in July 2014, the P.s, through their foster family agency, filed a report
alleging Ginger R. had driven off at the beginning of a visit when Alexandria did not yet
have her seat belt on. The Department did not take any action, and its reports indicate the
visit went well.
After remand, the case was assigned to Judge Trendacosta, who ordered individual
therapy for Alexandria in December 2014.8 Alexandria seemed happier and less anxious
in individual sessions and was much more open about discussing family. Wejbe felt that
Summer P. was reluctant to implement some of the therapy tools she suggested for
Alexandria in the home, and the P. family did not attend many of the cultural activities
offered through United American Indian Involvement. During one session, Wejbe made
a dreamcatcher with Alexandria. Summer P. testified the dreamcatcher had ended up in
the trash.
Alexandria had consistent monthly visits with the R.s, and video calls with them
about twice a week. The video call sessions were sometimes challenging because
Alexandria would get distracted. Her in-person visits with the R.s were generally
comfortable and relaxed, and Alexandria would sometimes ask to spend additional time
with the R.s. In contrast to Alexandria’s demeanor during visits with the R.s, the P.s
reported Alexandria would display anxious behaviors upon returning from visits, being
clingy and sometimes crying.
The R.s would usually include Alexandria’s older half-sister, Anna, in the visits.
Alexandria first met Anna during a July 2013 visit, when Anna was about 12 years old.
Anna lived with the R.s for a time, but by September 2015, she had moved down the
street from the R.s. Alexandria’s younger half-sister Kayla was born in March 2015, and
was being cared for by R.s. Alexandria responded to Kayla positively during
8 The P.s assert in their brief that at the first in-chambers conference, they sought
Judge Trendacosta’s permission to obtain a bonding study and asked the judge to
promptly set a date for a new good cause hearing, but their requests were ignored. The
P.s do not support these assertions with any evidence in the record, beyond their own
counsel’s assertion in a later hearing. An unsworn statement of counsel is not evidence.
(In re Zeth S. (2003) 31 Cal. 4th 396, 414, fn. 11.)
13
Alexandria’s first overnight visit with the R.s in April 2015. On a visit to Utah,
Alexandria left Post-its around the house, including one on Kayla’s swing, because she
did not want her sister to forget her.
Ginger R. had a close relationship with Alexandria’s paternal grandmother, Sharon
L., who was married to Ginger’s uncle. Sharon was Choctaw, with a close connection to
her tribe, and considered Ginger like a daughter, sharing stories with her. Ginger also
grew up in a community with many ties to Native American culture. Ginger has been in
contact with the Choctaw tribe since Sharon’s death in August 2011, and communicates
with the tribe at least monthly, but often weekly.
The P.s have described efforts they made to incorporate Native American culture
into their lives. Summer P. has Southern Tuscarora heritage, but the tribe is not enrolling
new members and is not a federally recognized tribe. They have painted one wall of their
kitchen “Navajo Blue,” and are members of the Autry Museum, participating in Native
American arts and crafts activities. They attend an annual pow-wow, and shortly before
the September 2015 good cause hearing, Summer and Alexandria attending a sage
burning ceremony. However, Summer declined to participate in a part of the activity,
and did not encourage Alexandria to participate.
Alexandria began overnight weekend visits with the R.s in April 2015, staying
with them from Friday to Sunday in southern California. In July 2015, she had a
weeklong visit in Utah with the R.s. A social worker traveled with her, observed her
transition to the R.s, and reported that Alexandria was excited about the visit and
appeared to be comfortable in the R. home. On the return trip, Alexandria told the social
worker she had a great time and would like to visit her sister and the R.s again. The P.s
felt that Alexandria was too young for overnight visits, noting that they would not let
their son of the same age stay with someone overnight.
14
On March 26, 2015, the court appointed Linda Doi Fick to conduct an evaluation
under Evidence Code 730.9 All parties agreed to Doi Fick as a neutral evaluator. She
spent over 25 hours on interviews, observations, and consultations, plus another 20 hours
reviewing case records in order to write her report, so she was familiar with the history of
the case and Alexandria’s relationship with the P.s. During Doi Fick’s time observing
Alexandria and her interactions with the P.s and the R.s, Alexandria had three separate
overnight visits with the R.s, and Doi Fick met with Alexandria and/or the R.s during or
at the end of each visit. She was also able to observe in her office how Alexandria was
able to transition from a visit with the R.s back to the P.s, and spoke by phone with the
P.s about their concerns with Alexandria’s behavior and demeanor after visits with the
R.s. Doi Fick commented that Alexandria appeared to have a good rapport with minor’s
counsel Jennifer McCartney, who during one visit informed Alexandria of changes to the
schedule, which Alexandria easily accepted.
After Doi Fick’s report was completed on June 25, 2015, the P.s asked the court to
approve an independent evaluator for a bonding study, emphasizing it was necessary for
the good cause hearing. Minor’s counsel opposed the request. At a hearing on July 8,
2015, the court explained that Doi Fick, in her capacity as an Evidence Code section 730
expert who was well-known to the court, was acting as an independent evaluator, but the
court would permit the P.s to retain an expert to review Doi Fick’s report. The P.s
retained Deena McMahon, whose initial report included observations and conclusions
based not only on her review of Doi Fick’s report and information provided to her by the
P.s, but also observations of and interviews with the P. family and Alexandria.
McMahon’s report was faxed to the parties on August 17, 2015. On August 20, 2015,
9 Doi Fick is a licensed marriage and family therapist with a master’s degree in
human development. She has been a member of the court’s 730 Expert Panel since 1991.
Evidence Code section 730 states, in relevant part: “When it appears to the court, at any
time before or during the trial of an action, that expert evidence is or may be required by
the court or by any party to the action, the court on its own motion or on motion of any
party may appoint one or more experts to investigate, to render a report as may be
ordered by the court, and to testify as an expert at the trial of the action relative to the fact
or matter as to which the expert evidence is or may be required.”
15
minor’s counsel filed a motion in limine to exclude the report and sought sanctions on the
grounds that the court had not authorized and the P.s’ attorney never obtained permission
for McMahon to speak with Alexandria. On the first day of the scheduled good cause
hearing, the court heard argument on minor’s motion to exclude the McMahon report,
and decided it would strike the report, but permit the P.s to proffer the expert on the
limited basis of her review of Doi Fick’s report only.
The court’s good cause hearing commenced on September 1, 2015, and continued
over five separate days. During the hearing, the P.s presented testimony from the
following witnesses: (1) Russell P.; (2) Summer P.; (3) McMahon, a bonding and
attachment expert; (4) Dr. Michael Ward, a member of the court’s Evidence Code section
730 panel; and (5) Lauren Axline, a social worker from their foster family agency.
Minor’s counsel called the following witnesses: (1) Doi Fick, the expert appointed by the
court under Evidence Code section 730; (2) Ginger R.; (3) minor’s therapist Wejbe; and
(4) Dr. Carrie Johnson, a licensed clinical psychologist who is a director of Seven
Generations at United American Indian Involvement and an expert on cultural identity.
The Choctaw tribe called tribal social worker Amanda Robinson. Counsel for the
Department and father participated in argument and cross-examined witnesses, but did
not call any witnesses. The Department offered into evidence reports from January 31,
2013 through August 17, 2015, and asked the court to take judicial notice of all prior
findings and orders. The only documents received into evidence from the P.s that are
part of our record on appeal are (1) a second report by McMahon,10 which does not
include any information or conclusions gleaned from her observations of or interactions
with Alexandria, and (2) a packet of e-mail correspondence involving the P.s’ possible
Indian heritage and their efforts to arrange visits with Alexandria’s half-sister Anna.
As explained in the procedural background section of this opinion, Judge
Trendacosta issued a ruling on November 3, 2015 deciding that the P.s had not proven
good cause to depart from the ICWA’s placement preferences, and ordering that
10McMahon’s original report is included as an exhibit on appeal, but it was not
admitted into evidence by the trial court.
16
Alexandria be placed with the R.s. The ruling was then stayed by peremptory writ, and
the matter remanded on January 29, 2016.
C. Facts preceding third good cause hearing
The case was assigned to Judge Diaz on February 2, 2016. On February 5, 2016,
Judge Diaz requested all counsel to verify that he had the complete record to review
before making a decision. The P.s filed a request to present additional evidence on
February 19, 2015. The court deferred ruling on the request because it had not yet
reviewed the entire file, but emphasized that it was hesitant to permit testimony because
it would cause a delay, and the appellate court had not given any specific direction about
reopening the case for further testimony.
On February 26, 2016, the P.s asked the court to either permit them to cross-
examine the Department’s social worker Orisco Wilson, or in the alternative, for the
court to decline to review the reports submitted by the Department. The court deferred
ruling on the request. When minor’s counsel pointed out that the 30-day deadline set by
this court was only three days away, Judge Diaz found that additional time was necessary
to review all the evidence.
On March 8, 2016, the court began by explaining that it would not be appropriate
to take additional evidence, given that it was not directed by the appellate court, and
would cause more delay. The parties argued their positions and the court issued its ruling
from the bench without an accompanying written decision. It found the P.s had not met
their burden of proving by clear and convincing evidence that there was a significant risk
of serious harm as a result of a change in placement. The court acknowledged
Alexandria was bonded to the P.s, and noted that it would be an “easy call” if Alexandria
was going to be “removed from a family who has the strength of the bond and place[d]
into a family that is significantly unknown . . . .” In contrast, Alexandria had bonded
with the R.s and she had an opportunity to bond with and grow up with her half-siblings
as well. The court also found it was in Alexandria’s best interests to provide her with the
17
opportunity to be raised in the Indian culture, even though she would not be living on a
reservation. The court ordered Alexandria to be placed with the R.s and imposed a
seven-day stay, after which Alexandria would be moved without a transition plan.
The P.s filed a notice of appeal, and also sought another writ of supersedeas to
stay Alexandria’s transfer. We denied the writ petition on March 18, 2016.11
DISCUSSION
The key question on appeal is whether the dependency court’s decision to place
Alexandria with the R. family in Utah in accordance with the ICWA’s placement
preferences is supported by substantial evidence. The P.s raise a number of collateral
issues as well. After reviewing the law governing good cause determinations, we address
the following issues: (a) law of the case and the scope of remand; (b) good cause as a
matter of law; (c) the substantial evidence supporting the court’s finding of no good
cause; and (d) the court’s evidentiary rulings.
A. The ICWA placement preferences and good cause exception
The oft-discussed history and overall requirements and presumptions of the ICWA
are discussed in Alexandria I, supra, 228 Cal.App.4th at pages 1337 through 1340. Most
relevant to the current discussion is the good cause exception to the ICWA’s placement
preferences. The ICWA provides that when an Indian child is put into an adoptive
placement, “a preference shall be given, in the absence of good cause to the contrary, to a
placement with (1) a member of the child’s extended family; (2) other members of the
Indian child’s tribe; or (3) other Indian families.” (§ 1915(a).) California law parallels
11 The parties have attempted to call the court’s attention to a number of facts that
occurred after the Notice of Appeal was filed, most of which relate to Alexandria’s
transfer to the R.s. We find the post-appeal facts to be irrelevant to our review, and
therefore decline to consider them.
18
these federal requirements, and also clarifies that the party requesting departure from the
ICWA’s placement preferences bears the burden of establishing the existence of good
cause. (Welf. & Inst. Code, § 361.31, subd. (j); see also In re Anthony T. (2012) 208
Cal. App. 4th 1019, 1029.)
Our earlier opinion referenced guidelines enacted by the Department of the
Interior, Bureau of Indian Affairs (Bureau) in 1979, which provided nonbinding guidance
on implementation of the ICWA. (44 Fed.Reg. 67584 (Nov. 26, 1979); Alexandria I,
supra, 228 Cal.App.4th at p. 1339.) In 2015, the Bureau issued an updated set of
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (80
Fed.Reg. 10146 (Feb. 25, 2015) (Guidelines)) to replace the 1979 guidelines. The
Guidelines are instructive or advisory, not mandatory. (Fresno County Dept. of Children
& Family Services v. Superior Court (2004) 122 Cal. App. 4th 626, 642-643 (Fresno
County).) The Bureau also subsequently issued a final rule12 to govern the ICWA
implementation. (81 Fed.Reg. 38778 et seq. (June 14, 2016).) The rule does not directly
affect the current proceeding because it does not take effect until December 12, 2016.13
We mention the new rule here, however, because the continued relevance and viability of
the 2015 Guidelines once the rule takes effect is not entirely clear. The language and
substance of the rule differ from the 2015 Guidelines in ways that we will discuss in
12 The regulations contained in the rule will appear in Title 25 of Code of Federal
Regulations as “Subpart I-Indian Child Welfare Act Proceedings.” Section 23.101 states
“The regulations in this subpart clarify the minimum Federal standards governing
implementation of the Indian Child Welfare Act (ICWA) to ensure that ICWA is applied
in all States consistent with the Act’s express language, Congress’s intent in enacting the
statute, and to promote the stability and security of Indian tribes and families.” (81
Fed.Reg., supra, at p. 38868.)
13 Section 23.143 of the rule states, “None of the provisions of this subpart affects
a proceeding under State law for foster-care placement, termination of parental rights,
preadoptive placement, or adoptive placement that was initiated prior to December 12,
2016, but the provisions of this subpart apply to any subsequent proceeding in the same
matter or subsequent proceedings affecting the custody or placement of the same child.”
(81 Fed.Reg., supra, at p. 38876.)
19
detail later in this opinion, but nothing in the rule states that it supersedes the Guidelines.
Instead, the new rule states, “In some cases, the [Bureau] determined that particular
standards or practices are better suited to guidelines; the [Bureau] anticipates issuing
updated guidelines prior to the effective date of this rule (180 days from issuance).” (81
Fed.Reg., supra, at p. 38780.) Updated guidelines have not yet been issued, but the new
rule does contain provisions that will be relevant to good cause determinations in future
cases.
The portion of the 2015 Guidelines outlining what courts should consider in
determining good cause cautions against giving weight to ordinary bonding that may
occur in a placement that does not comply with the ICWA.14 (Guidelines, 80 Fed.Reg.,
supra, at p. 10158.) The new final rule provides that “[a] placement may not depart from
the preferences based solely on ordinary bonding or attachment that flowed from time
spent in a non-preferred placement that was made in violation of ICWA.” (81 Fed.Reg.,
supra, at p. 38875; 25 C.F.R. § 132(e), effective Dec. 12, 2016.) The Bureau explains the
distinction between the Guidelines’s reference to a “placement that does not comply with
ICWA” and the rule’s reference to a “placement that was made in violation of ICWA” as
follows: “The comments reflected some confusion regarding what constitutes a
‘placement that does not comply with ICWA.’ For clarity, the final rule instead
references a ‘violation’ of ICWA to emphasize that there needs to be a failure to comply
with specific statutory or regulatory mandates. The determination of whether there was a
violation of ICWA will be fact specific and tied to the requirements of the statute and this
rule. For example, failure to provide the required notice to the Indian child’s Tribe for a
year, despite the Tribe having been clearly identified at the start of the proceeding, would
be a violation of ICWA. By comparison, placing a child in a non-preferred placement
14
Guidelines Part IV, section F.4, subdivision (c)(3) provides that a finding of
good cause could be based on the extraordinary physical or emotional needs of the child,
but that “extraordinary physical or emotional needs of the child does not include ordinary
bonding or attachment that may have occurred as a result of a placement or the fact that
the child has, for an extended amount of time, been in another placement that does not
comply with the Act.” (Guidelines, 80 Fed.Reg., supra, at p. 10158.)
20
would not be a violation of ICWA if the State agency and court followed the statute and
applicable rules in making the placement, including by properly determining that there
was good cause to deviate from the placement preferences.” (81 Fed.Reg., supra, at p.
38846.)
On the role a child’s best interests play in a good cause determination, the 2015
Guidelines state “[t]he good cause determination does not include an independent
consideration of the best interest of the Indian child because the preferences reflect the
best interests of an Indian child in light of the purposes of the Act.” (Guidelines, 80
Fed.Reg., supra, at p. 10158.) In contrast, the new regulations that the final rule will add
to the Code of Federal Regulations do not contain any reference to a child’s best interests
in the context of determining whether good cause exists to depart from the ICWA’s
placement preferences. When the Notice of Proposed Rulemaking that led to the final
rule was available for public comment, commenters either approved of the omission of
any reference to best interests, or objected to the omission. (See 81 Fed.Reg., supra, at p.
38847.) The Bureau’s response to the comments emphasizes the risk present if courts
were to use a best interests analysis as a less rigorous proxy for determining good cause
in accordance with the final rule: “ICWA and this rule provide objective mandates that
are designed to promote the welfare and short- and long-term interests of Indian children.
Congress enacted ICWA to protect the best interests of Indian children. However, the
regulations also provide flexibility for courts to appropriately consider the particular
circumstances of the individual children and to protect those children. For example,
courts do not need to follow ICWA’s placement preferences if there is ‘good cause’ to
deviate from those preferences. The ‘good cause’ determination should not, however,
simply devolve into a free-ranging ‘best interests’ determination. Congress was skeptical
of using ‘vague standards like “the best interests of the child,”’ H.R. Rep. No. 95-1386[,
2d Sess., p. 19 (1978)], and intended good cause to be a limited exception, rather than a
broad category that could swallow the rule.” (81 Fed.Reg., supra, at p. 38847.)
Although our decision is not subject to or controlled by these provisions of the
new final rule, the Bureau’s issuance of the rule makes us even more reticent to rely on
21
the non-binding 2015 Guidelines as persuasive authority. The final rule clarifies the
Bureau’s intent in including the “ordinary bonding or attachment” statement in Part IV,
section F.4 of the 2015 Guidelines, and no party contends that Alexandria’s initial
placement with the P.s was a “placement in violation of ICWA” (81 Fed.Reg., supra, at
p. 38875)—and for good reason. The Choctaw tribe consented to the placement to
facilitate efforts to reunify Alexandria with her father, and the P.s were informed that
Alexandria was an Indian child subject to adoptive placement in accordance with the
placement preferences.
We do observe, however, that our earlier opinion (and our analysis here) is fully
consistent with the final rule’s observation that a good cause determination should not
devolve into a standardless, free-ranging best interests inquiry. We held that a child’s best
interest was a relevant factor in determining good cause, but recognized that it was one
factor among several that a court would take into account in determining good cause.
(Alexandria I, supra, 228 Cal.App.4th at pp. 1355-1356.) Our citations to cases from
other states made this point clear. (Native Village of Tununak v. State, Dept. of Health &
Social Services, Office of Children’s Services (Alaska 2013) 303 P.3d 431, 451-452
[good cause depends on many factors, including the child’s best interests]; In Interest of
A.E. (Iowa 1997) 572 N.W.2d 579, 585 [good cause depends on a fact determinative
analysis consisting of many factors, including the best interests of the child]; In re
Interest of Bird Head (1983) 213 Neb. 741, 750 [331 N.W.2d 785, 791] [“[The ICWA]
does not change the cardinal rule that the best interests of the child are paramount,
although it may alter its focus”].) Nothing in our opinion directed the lower court to give
greater weight to any one factor over others. A court tasked with determining good cause
will consider a constellation of factors in determining whether a party has proven good
cause by clear and convincing evidence. Among those factors will be the Indian child’s
best interests and whether the child is at significant risk of suffering serious harm as a
result of a change in placement, including the effect of breaking a child’s existing
attachments. (Alexandria I, supra, 228 Cal.App.4th at pp. 1352-1356.)
22
B. The court’s decision did not exceed the scope of remand or disregard the law
of the case.
We reject the P.s’ contentions that the lower court exceeded the scope of the
remand stated in our August 15, 2014 opinion, or that it violated the law of the case
established by that opinion. The opinion concluded that Judge Pellman’s 2013 decision
had applied an incorrect standard for determining whether the P.s had demonstrated good
cause to depart from the ICWA’s placement preferences. Recognizing that circumstances
might have changed in the one-year interim between Judge Pellman’s ruling and our
decision to reverse and remand, we emphasized “that in determining whether good cause
exists to depart from the placement preferences identified in section 1915(a), the court
may consider facts and circumstances that have arisen since the filing of this appeal.
(See, e.g., In re B.C. (2011) 192 Cal. App. 4th 129, 150-151 [reversing and remanding
with clarification that in determining child’s best interests, the court may consider events
arising since the filing of the appeal].)” (Alexandria I, supra, 228 Cal.App.4th at
p. 1357.) The dependency court could consider the evidence that had already been
presented, plus any new evidence it deemed relevant to the good cause determination,
and decide whether the P.s had proven by clear and convincing evidence that there was
good cause to depart from the ICWA’s placement preferences, based partly on whether
there was “a significant risk that [Alexandria] will suffer serious harm as a result of a
change in placement.” (Id. at p. 1354.) We noted that “the bond between Alexandria and
her caretakers and the trauma that Alexandria may suffer if that bond is broken are
essential components of what the court should consider when determining whether good
cause exists to depart from the ICWA’s placement preferences.” (Id. at p. 1355.) We
also concluded Judge Pellman should have given appropriate consideration to facts
relevant to Alexandria’s best interests. (Id. at pp. 1355-1356.)15
15 Because the Guidelines are not binding (and of dubious vitality following the
final rule in any event), we decline to consider whether our prior holding is affected by
the issuance of those Guidelines.
23
Consistent with our earlier holding, the P.s could discharge their burden to show,
by clear and convincing evidence, good cause to depart from the ICWA’s placement
preferences by demonstrating there was a significant risk that Alexandria would suffer
serious harm as a result of a change in placement. (Alexandria I, supra, 228 Cal.App.4th
at p. 1354, fn. omitted.)
The P.s complain that Judge Diaz’s decision does not comply with this court’s
2014 opinion because he did not make an individualized determination of Alexandria’s
best interests. They also argue the dependency court impermissibly expanded the scope
of its inquiry—thereby exceeding the scope of this court’s remand—by considering the
impact on Alexandria’s cultural identity if she were to remain with the P.s. Implicit in
their claims is an argument that when conducting a best interests inquiry in the context of
deciding whether good cause exists to depart from the ICWA’s placement preferences, a
court should not weigh considerations like cultural identity or connection to extended
family, because those considerations are already incorporated into the presumption that
placement in accordance with the ICWA is in an Indian child’s best interests. We
disagree.
The court’s inquiries into substantial risk of serious harm and best interests are
intertwined, fact-specific, and not susceptible to strict boundaries. When the best
interests of an Indian child are being considered, the importance of preserving the child’s
familial and cultural connections often cannot be separated from other factors. The 2015
Guidelines cautioned against courts conducting “an independent consideration of the best
interest of the Indian child because the preferences reflect the best interests of an Indian
child in light of the purposes of the Act.” (Guidelines, 80 Fed.Reg., supra, at p. 10158,
italics added.) The regulations added by the recently issued final rule, which are intended
to be binding on future state court determinations of good cause, are silent on what role a
child’s best interests will play in such a determination. While we reaffirm our earlier
holding that a court should take an Indian child’s best interests into account as one of the
constellation of factors relevant to a good cause determination, we reject the P.s’
argument that the best interests inquiry should exclude consideration of her connection to
24
extended family or her cultural identity. We also caution against using the best interests
concept as carte blanche to seize upon any showing as sufficient reason to depart from
the ICWA’s placement preferences.
Judge Trendacosta and Judge Diaz considered Alexandria’s best interests as part
of their good cause determinations. Judge Diaz reviewed all of the testimony and
evidence presented to Judge Trendacosta, and his ruling from the bench reflected his
familiarity with the relevant facts. By considering details specific to Alexandria’s
circumstances, he conducted a best interests analysis. In the absence of any evidence that
either Judge Trendacosta or Judge Diaz intentionally disregarded this court’s directions
on remand, we hold the court’s March 8, 2016 decision complies with both the law of the
case and our directions on remand.
C. Good cause does not exist as a matter of law.
We reject any argument that the facts before the court constituted good cause as a
matter of law. The P.s frame the issue as compelling a particular result because
Alexandria has been a part of their family for over four years. In their view, because
Alexandria had a strong primary bond to the family—which all parties and the court
concede she did—she would inevitably suffer trauma if that bond was broken, and so
good cause exists as a matter of law. They support their argument by citing to cases and
a statute where a minor’s interest in stability and permanency prevailed over a biological
parent’s interests. (See, e.g., Fam. Code, § 3041, subd. (c); In re Jasmon O. (1994) 8
Cal. 4th 398, 419 [recognizing child’s right to stability and permanence based on risk of
serious harm from severing bond to de facto parents]; In re Marilyn H. (1993) 5 Cal. 4th
295, 306; Guardianship of Zachary H. (1999) 73 Cal. App. 4th 51, 64.)
This argument ignores the multifaceted analysis that precludes reducing a good
cause determination to a single question. The longevity of a child’s foster placement may
sometimes be relevant to deciding whether good cause exists to depart from the ICWA’s
placement preferences, but it cannot be the sole deciding factor. (See, e.g., Matter of
25
Adoption of Halloway (Utah 1986) 732 P.2d 962, 971-972 [acknowledging that
placement stability is a paramount value, but it is not “the sole yardstick” for judging the
validity of a child’s placement].) The United States Supreme Court has cautioned that
courts should not “‘reward those who obtain custody, whether lawfully or otherwise, and
maintain it during any ensuing (and protracted) litigation,’ [Citation.]” (Mississippi Band
of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 54.) In addition, making the
longevity of Alexandria’s placement with the P.s a determinative factor would ignore not
just the overall policy behind the ICWA, but also the more general state policy favoring
preservation of extended family and sibling relationships in the dependency context.16
A holding that the facts before us constituted good cause as a matter of law would
circumvent the policies favoring relatives and siblings, and it would incentivize families
who knowingly accept temporary foster placements to delay an Indian child’s ultimate
adoptive placement in the hope that as time passes, the family will reach a “safe zone”
where harm to a child from disrupting his or her primary attachment is presumed as a
matter of law. It is unwise and unnecessary to stretch the bounds of California law in that
manner.
We also reject the P.s’ contention that the federal Adoption and Safe Families Act
of 1997 (the Act) (Pub.L. No. 105-89 (Nov. 19, 1997) 111 Stat. 2115) requires a finding
of good cause as a matter of law. The Act encourages child welfare agencies to engage in
concurrent planning, meaning that while reunification services for parents are proceeding,
the agencies concurrently identify and approve qualified families for adoptive placement
16 For example, California’s dependency statutes require social workers to
investigate and locate relatives who may be potential caretakers for children who are
removed from their parents, and requires courts to consider relative placement as an
option. (Welf. & Inst. Code, §§ 309, 319.) Other statutes underscore the importance of
ensuring that siblings are placed together in foster care, unless such arrangements are
contrary to a minor’s safety or well-being. (Welf. & Inst. Code, §§ 361.2, subd. (f)(3),
361.3, subd. (a)(4), 16002, subd. (a)(1).) In addition, the Bureau’s new regulations
include “the presence of a sibling relationship that can be maintained only through a
particular placement” as a consideration upon which a determination of good cause can
be based. (81 Fed.Reg., supra, at p. 38874; 25 C.F.R. § 23.132(c)(3).)
26
if reunification efforts fail. Here, the Department and the tribe identified and approved
the R.s as Alexandria’s proposed adoptive placement by late 2012. This case is therefore
unlike In the Matter of M.K.T., 2016 OK 4, ¶¶ 67-72 [368 P.3d 771, 791-792], where a
tribe opposed a good cause finding even though it had no available adoptive placement
two and a half years after the state had assumed custody of the minor. The only delay to
Alexandria’s adoptive placement has been ongoing litigation over the good cause
exception to the ICWA’s placement preferences. There is no need to find good cause as
a matter of law to avoid a conflict with the Act.
D. There is substantial evidence to support the court’s conclusion that the P.s
have not shown good cause to depart from the ICWA preferences.
Substantial evidence standard of review
In evaluating whether there is substantial evidence to support the court’s finding
that there was no good cause to depart from the ICWA’s placement preferences, we apply
the standard of review stated in Alexandria I.17 “When a party appeals a good cause
determination, the appellate court usually applies a substantial evidence standard of
review. (Fresno County, supra, 122 Cal.App.4th at pp. 644-646.) ‘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 supporting a contrary finding. [Citations.] The
appellant has the burden of showing there is no evidence of a sufficiently substantial
17 We acknowledge the P.s seek an abuse of discretion standard of review, because
a court making a good cause determination must make factual findings and then apply the
facts to legally relevant factors. The County recommends a hybrid approach used by
some courts when reviewing application of the beneficial parental relationship exception
to termination of parental rights under Welfare and Institutions Code section 366.26,
subdivision (c)(1)(B)(i). Having reviewed the record on appeal, we would affirm under
either standard. (See, e.g., In re G.B. (2014) 227 Cal. App. 4th 1147, 1166, fn. 7.)
27
nature to support the court’s findings. [Citation.]’ (In re G.L. (2009) 177 Cal. App. 4th
683, 697-698.)” (Alexandria I, supra, 228 Cal.App.4th at p. 1352.)
Substantial evidence supports a finding of no good cause
The P.s focus on what they characterize as uncontradicted expert testimony that
Alexandria would definitely suffer significant harm if her primary attachment to the P.s
was broken. They argue that because the Evidence Code section 730 expert Doi Fick
gave no opinion on that topic, the court’s finding of no good cause lacked evidentiary
support. They also claim there was no evidence to support the court’s assumptions that
the tribe would be available to support Alexandria’s transition, and that Alexandria saw
the R.s as family.
The absence of a report contradicting the opinion of the P.s’ retained expert and
the fact that the court drew inferences from evidence about Alexandria’s access to a
support system in Utah does not lead to the inevitable conclusion that there was no
substantial evidence to support the court’s ruling. Instead, viewing the record as a whole
and in the light most favorable to the court’s finding, we conclude that the evidence
presented by minor’s counsel, the Department, and the tribe regarding Alexandria’s
ability to navigate and develop new attachments; the benefits of preserving the
connection to her extended family, half-siblings, and her cultural identity; and the adverse
effects of the P.s’ unwillingness or inability to support Alexandria’s relationship with the
R.s, constitute substantial evidence that good cause did not exist to depart from the
ICWA’s placement preferences.
The P.s primarily rely on four cases they contend establish that the risks of harm to
a child removed from a long term placement are sufficient to establish good cause: In re
N.M. (2009) 174 Cal. App. 4th 328, 335; In re A.A. (2008) 167 Cal. App. 4th 1292; Fresno
County, supra, 122 Cal. App. 4th 626; and In re Brandon M. (1997) 54 Cal. App. 4th 1387.
In each of these cases the lower court found that good cause had been proven, and the
appellate court upheld the determination. Our case comes to us in the opposite
28
procedural posture. The P.s were the party with the burden of proof, needing to
demonstrate good cause by clear and convincing evidence. (Alexandria I, supra, 228
Cal.App.4th at pp. 1348-1352.) To establish that the lower court’s decision was
erroneous, they would need to demonstrate that viewing the evidence in the light most
favorable to the court’s finding, no judge could reasonably reach the same conclusion.
(See, e.g., In re Jasmine D. (2000) 78 Cal. App. 4th 1339, 1351.)
We understand the court’s decision was not an easy one. When an Indian child
has been in a stable foster placement for a long period of time, a court’s inquiry into
whether good cause exists to depart from the ICWA’s placement preferences is one of the
most difficult determinations a court can make. The pertinent inquiry on appeal is
whether substantial evidence supports the finding, not whether a contrary finding might
have been made. (In re Dakota H. (2005) 132 Cal. App. 4th 212, 228.)
The most significant evidence in support of the court’s finding is the report and
testimony by Doi Fick. According to Doi Fick, “Alexandria has formed a safe, secure,
primary attachment to the [P.s]. She has formed sibling attachments to the [P.s’]
children . . . . These attachments have made it possible for Alexandria to form collateral
attachments to other meaningful people.” Alexandria had been able to form meaningful
and affectionate collateral attachments to the R.s and her half-sisters, Anna and Kayla.
Doi Fick noted that if Alexandria were to lose her strong sibling relationship with Anna,
it would shake her sense of identity. Both Doi Fick and Alexandria’s therapist Wejbe felt
the R.s would be supportive of a continued relationship between Alexandria and the P.s.
Both also expressed concern that the P. family would be unable to support a continuing
relationship between Alexandria and the R.s and her half-sisters, Anna and Kayla. The
R.s were also better able to provide Alexandria with a connection to her cultural identity,
as Ginger previously had a close relationship with Alexandria’s paternal grandmother,
Sharon L.
In the section of her report titled, “Opinion and insight on Alexandria’s mental
and/or emotional health if relationship and/or attachment she has with the P. family is
broken,” Doi Fick proffered that there need not be a break in Alexandria’s relationship
29
with the P.s, and that continuing to maintain some sort of relationship would benefit
Alexandria: “Alexandria is a resilient child who has developed coping and adjustment
skills. Change is not without reaction. Many of the behaviors and/or anxiety symptoms
described by the [P.s] are due to lack of support within their home, conflicted emotions
stimulated by the other children, or issues commonly addressed by therapists when such
changes are occurring.” Doi Fick was concerned that a continued loyalty conflict, where
Alexandria felt the need to please both the P.s and the R.s, would affect Alexandria
negatively.
Doi Fick acknowledged Alexandria’s move would be difficult, but opined
Alexandria has “the emotional resilience, and adaptive, adjustment, and coping skills to
resolve a change in place.” Doi Fick believed that with therapeutic assistance,
Alexandria would be able to adjust and form a new primary attachment with the R.s.
“Her adaptive and coping ability indicate that a positive outcome is likely and with
therapeutic assistance, she would likely make a successful adjustment, especially if the
[P.s] will continue to maintain a supportive relationship with her.”
The P.s argue that because Doi Fick did not directly state an opinion on whether
Alexandria was at significant risk of substantial harm based on a move to Utah, her
opinion lacks the weight and specificity necessary to counter their own expert’s opinion
that Alexandria would suffer trauma if her primary attachment to the P.s was broken.
The lack of a direct correlation between the two expert opinions is not a basis to ignore
Doi Fick’s observations and conclusions. Doi Fick testified that because Alexandria had
a strong collateral bond with the R.s, looking to them for nurturance, structure, and
cooperation, and was able to form that collateral bond based on her strong primary bond
with the P.s, she would be able to transition to custody with the R.s. She also explained
that children are able to have multiple primary attachments in situations with divorced
parents or a caretaker who cares for a child from a young age. The P.s’ emphasis on
possible trauma to Alexandria resulting from a move away from the P.s ignores the
strength of her connection to the R.s. The court in its ruling emphasized Alexandria was
not being placed “into a family that it significantly unknown to the child,” but rather her
30
placement would reinforce the bond she already had with the R.s, and would give her the
“opportunity to bond with, to live with, to grow up with” two of her siblings as well.
The P.s disagree with the premise of Doi Fick’s report that placement with the R.s
does not necessarily mean that Alexandria’s bond with the P.s must be broken.
Dependency law, however, recognizes that unusual arrangements are occasionally crafted
to serve the best interests of a child. For example, a parent who is unable to provide day-
to-day care for a child may sometimes be permitted to maintain a relationship with the
child, while another adult takes up permanent guardianship. (See, e.g., Welf. & Inst.
Code, § 366.26, subd. (c)(1)(B)(i); In re Scott B. (2010) 188 Cal. App. 4th 452, 470
[applying parent-child relationship exception to conclude that guardianship, rather than
adoption, was the correct permanent plan].)
Additional evidence weighing against a good cause finding is that the R.s offer
Alexandria a better opportunity to maintain a relationship with two of her siblings, Anna
and Kayla. Fourteen-year-old Anna has known the R.s most of her life, and for a time
was living with them. Infant Kayla was placed with the R.s sometime shortly after her
birth in March 2015. Alexandria first met her during a visit with the R.s when Kayla was
just three weeks old, and had seen Kayla on all her visits with the R.s up to the September
2015 good cause hearing. At trial, the P.s relied heavily on e-mails to demonstrate that
they had attempted to arrange visits between Alexandria and Anna, but evidence of these
unsuccessful efforts does not negate the fact that the R.s had been able to provide
Alexandria contact and a meaningful connection with her siblings, where the P.s had not.
The P.s also argue on appeal that there was no substantial evidence to support Judge
Diaz’s statement that placement with the R.s would give Alexandria the “opportunity to
bond with, to live with, [and] to grow up with” her siblings. While the P.s’ brief
speculates about whether Anna has continued contact with the R.s and whether Kayla
remained with them after the September 2015 hearing, there is no evidence supporting
the speculation. The evidence from the September 2015 hearing established that Anna
was living down the street from the R.s, and that Kayla had lived with the R.s since her
birth in March 2015 until the hearing. Both Anna and Kayla have come with the R.s to
31
visit Alexandria, and Alexandria visited with both on a visit to Utah. The most
reasonable inference from the evidence is that the R.s can best facilitate a continuing
relationship between Alexandria and Anna, as well as ensuring that Alexandria and Kayla
develop a relationship as they both grow older. Because there was substantial evidence
that Alexandria’s relationship with her siblings was meaningful and significant, it was
reasonable for the trial court to consider the potential long-term benefit of preserving
these relationships in weighing Alexandria’s best interests.18
The P.s also attempt to paint the record as lacking in hard evidence of the R.s’ ties
to Choctaw culture. Ginger R.’s testimony on this point is sufficient to support a
reasonable inference that she will be more effective than the P.s with giving Alexandria
access to her cultural identity.
The P.s argue that the lower court and respondents placed too great an emphasis
on the P.s’ knowledge, when they accepted Alexandria into their home, that the
placement was temporary and the ICWA’s placement preferences applied. They ask us
to view the bond from Alexandria’s perspective, noting that a two-year-old cannot be
asked to understand the concept of a “temporary placement.” However, this argument
does not adequately respond to an issue raised by the evidence, which is a concern about
the extent to which the P.s were unable to carry out their role as foster parents in
supporting Alexandria as she developed a relationship with the R.s, who the tribe had
identified as an adoptive placement. Evidence of their resistance to increasing visitation,
and evidence they insisted that visits and therapy include the entire P. family, rather than
Alexandria alone, gives further support to the court’s finding that Alexandria’s best
interests weighed in favor of a change in placement.
Taken together, the evidence and testimony presented at the September 2015
hearing provide substantial evidence to support the court’s decision that the P.s did not
18 In fact, under the new regulations that will take effect in December this year, the
preservation of such sibling relationships is an explicit consideration when a court is
deciding whether good cause exists to depart from the ICWA’s placement preferences.
(81 Fed.Reg., supra, at p. 38874.)
32
carry their burden of proving good cause to depart from the ICWA’s placement
preferences.
Opposing positions of the P.s and minor’s counsel
The P.s also do not—and in our view cannot—provide an adequate response to an
issue raised most effectively by minor’s appellate counsel. Even though they appear
before the court by virtue of their status as de facto parents, the P.s’ efforts to show good
cause are motivated by their own interests. Minor’s counsel, not the P.s, has a legal and
ethical obligation to represent Alexandria’s interests.19 (In re Josiah Z. (2005) 36 Cal. 4th
664, 675-677.) The P.s lack the right to assert Alexandria’s interests because Alexandria
has her own counsel, who represents her interests and also acts as her guardian ad litem.
(In re Zamer G. (2007) 153 Cal. App. 4th 1253, 1263-1271 [discussing the role of minor’s
counsel and guardian ad litem and explaining “it is the attorney’s role to make a
reasonable independent determination of the minor’s best interests, notwithstanding the
minors’ preferences”]; see also Welf. & Inst. Code, §§ 317, subd. (e)(1) [“[c]ounsel shall
be charged in general with the representation of the child’s interests”] and 326.5 [child’s
guardian ad litem may be an attorney or a court-appointed special advocate]; Cal. Rules
of Court, rules 5.660 and 5.662.) In this case, Alexandria’s trial counsel, who replaced
prior counsel in October 2014, had visited the minor in multiple settings and established a
good rapport with her. For example, when it became necessary to inform Alexandria
about a change in plans for a visit with the R.s, requiring an unexpected transition back to
the P.s for a family barbeque, minor’s counsel informed Alexandria of the change. The
court’s Evidence Code section 730 expert expressed surprise at the ease with which
Alexandria accepted the change in plans, and when she asked Alexandria who explained
19 We cannot agree with the statement in the P.s’ opening brief that “Minor’s trial
counsel, who vigorously represented the interests of the R.s, consistently fought the
premise of this Court’s remand.” The record demonstrates that minor’s trial counsel was
consistently focused on the best interests of her client Alexandria, and comported herself
in a professional and ethical manner.
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it to her, Alexandria confidently replied “Jennifer [minor’s counsel] explained it. She’s
nice.”
We recognize that the P.s are claiming that Alexandria’s best interests are served
by a finding of good cause, but their argument is undermined by the fact that minor’s
counsel argued just the opposite. We are unaware of any published case where a court
has upheld a departure from the ICWA’s placement preferences contrary to the position
of the minor. In other words, in every published case upholding a good cause finding,
counsel for the minor either advocated for the finding, was aligned with the party
advocating for a finding of good cause, or was silent. (See, e.g., In re N.M., supra, 174
Cal.App.4th at p. 334 [affirming good cause finding in case where father, the tribe, and
the Department all favored the ICWA-compliant placement with the paternal
grandmother, while minor’s counsel favored departure from the ICWA and placement
with non-relative]; In re A.A., supra, 167 Cal.App.4th at pp. 1329-1330 [affirming good
cause finding against tribe and relatives advocating moving minors into an ICWA-
compliant placement from their stable foster placement, where minor’s counsel was
silent]; Fresno County, supra, 122 Cal.App.4th at p. 632 [affirming good cause finding
where minor’s attorney opposed recommendation by tribe, Department, and mother to
follow the ICWA’s placement preferences].) The P.s fail in their attempt to analogize
this case to others where minor’s counsel supported a non-ICWA-compliant placement as
being in a child’s best interests, because here, minor’s counsel supported an ICWA-
compliant placement, presented evidence, and argued against a good cause finding.
E. The court’s evidentiary rulings were not an abuse of discretion.
We review the lower court’s evidentiary decisions for abuse of discretion. (In re
Roberto C. (2012) 209 Cal. App. 4th 1241, 1249.)
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Exclusion of McMahon’s initial report
The P.s claim that the court erred when it initially deferred their request to conduct
a bonding study, and then erred again when it excluded the full report prepared by their
bonding and attachment expert, McMahon. The error, if any, was harmless.
First, while the P.s claim they were prejudiced by the court’s delay in appointing a
bonding expert, there is no admissible evidence of an earlier request in the record.
Instead, the P.s cite to the argument of their own counsel in July 2015, after the Evidence
Code section 730 expert had completed her report.
Second, the court had before it ample evidence about the extent to which
Alexandria had bonded to the P.s, and the extent to which a change in placement would
create a significant risk of serious harm. Well in advance of the September 2015 good
cause hearing, the court appointed a neutral evaluator, Doi Fick, under Evidence Code
section 730. The court’s appointment order directed Doi Fick to examine Alexandria, the
P.s, and the R.s, and to speak with Alexandria’s therapist Wejbe, as well as any other
person she deemed necessary and appropriate. The order directed Doi Fick to prepare a
report containing her opinions, findings and conclusions on nine different issues,
including Alexandria’s attachment to the P.s and the R.s, “the trauma or impact on
Alexandria’s mental and/or emotional health” if her attachment with the P. family was
broken, and how open the P.s and the R.s were to discussing her psychological and
emotional well-being. To the extent the P.s believed Doi Fick had not adequately
addressed the required topics in her report, they did not raise an objection. More
importantly, no party argued that Alexandria was not bonded to the P.s, and the only
portion of McMahon’s report that was removed pertained to her observations of and
interactions with Alexandria.
Third, the court’s decision to exclude portions of McMahon’s report were based
on counsel’s failure to advise the expert of the limitations the court had placed on her
activities. The court had wide discretion on this issue, and even if it was error to exclude
the report, any error was harmless because it was undisputed that Alexandria had a
35
strong, primary attachment to the P. family. McMahon testified at the good cause
hearing and gave her opinion about the importance of stability and the likelihood
Alexandria would suffer trauma. The fact that portions of her report based on her
observations of Alexandria had to be removed before her report was admitted into
evidence does not rise to the level of prejudicial error.
Cross-examination of social worker
Relying on his discretion under Evidence Code section 352, Judge Trendacosta
denied the P.s’ request to call Wilson, the Department social worker, as a witness. Later,
the P.s sought to either cross-examine Wilson or have Wilson’s reports excluded. Judge
Diaz did not take any new testimony, and so did not grant either request.
The P.s argue that it was an abuse of discretion per se to consider the reports
without allowing them to cross-examine the author, citing to In re Matthew P. (1999) 71
Cal. App. 4th 841, 851-852. The facts here are more analogous to those at issue in In re
Damion B. (2011) 202 Cal. App. 4th 880. In that case, medically-fragile twins had lived
with de facto parents since they were six months old, and the social service agency
recommended that the children be returned to their mother. De facto parents opposed the
recommendation, and sought an evidentiary hearing. The dependency court noted that it
had appointed counsel to represent de facto parents, and had considered evidence in the
form of caretaker information forms, but it would not permit de facto parents to cross-
examine the social worker. (Id. at pp. 883-887.) The Court of Appeal affirmed because
de facto parents had ample opportunity to make their position known to the court, unlike
the parents in In re Matthew P., who had been denied any opportunity to fully present
their position. In the hearing before Judge Trendacosta, the P.s had ample opportunity to
present evidence, testimony, and argument. The P.s called five witnesses, including a
social worker and two experts who were critical of Doi Fick’s report. The court hearing
took place over five separate days, with a total of ten witnesses. The court reasonably
exercised its discretion, because any testimony by Wilson would be cumulative of
36
testimony already before the court. As Judge Trendacosta made clear when he denied the
request to have Wilson on call to testify, the P.s had already “testified at some length
about their communication, or . . . lack thereof, with the Department,” and the hearing
was not focused on what the Department did or did not do. Similarly, Judge Diaz did not
abuse his discretion in denying the P.s’ motion to either exclude the Department reports
or permit examination of Wilson.
Request to present additional evidence or testimony
The P.s argue that a court cannot make credibility determinations or assign relative
weight to evidence without hearing live testimony. We disagree. Judge Diaz was
following our peremptory writ in assuring that the matter was resolved as promptly as
possible, and permitting live testimony would only delay a decision. In our peremptory
writ, we specifically directed, “Absent a determination of good cause in the discretion of
the dependency court, the court is not obligated to consider additional evidence on the
issue of placement.” (R.P. v. Superior Court (Nov. 25, 2015, B268111) [nonpub. opn.].)
We also directed the court to resolve the issue of placement within 30 days.
Although the P.s requested to present additional testimony, they did not establish
that there was good cause to do so. Their only argument was that a half-year had passed,
and additional evidence, including testimony from Alexandria and her kindergarten
teacher, would assist the court in making its decision. Simply put, since Judge Diaz was
well aware of our November 25, 2015 order and the need to resolve the good cause issue
expediently, he did not abuse his discretion in denying the request for additional
testimony.
To the extent the P.s are arguing that the court could not make credibility
determinations without live testimony, they are essentially arguing that Judge Diaz
should have conducted a new good cause hearing, rather than reviewing the court records
and the earlier hearing transcripts to make his determination. That was never our intent.
Principles of appellate review constrain the appellate courts from making credibility
37
determinations through transcripts alone. (In re Marriage of Smith (1990) 225
Cal. App. 3d 469, 494.) But there is no bar to a judge reviewing the record to reach a
determination, even in a criminal case. (See, e.g., People v. Collins (2010) 49 Cal. 4th
175, 257-258 [not a denial of due process for a judge other than the original trial judge to
review the record and rule on a motion under Penal Code section 190.4, subdivision (c),
for an automatic application to modify a death penalty verdict].)
DISPOSITION
The court’s order finding no good cause to depart from the ICWA’s adoptive
placement preferences and directing Alexandria to be placed with the R.s is affirmed.
KRIEGLER, J.
We concur:
TURNER, P.J.
BAKER, J.
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