San Benardino County Children & Family Services v. M.P. , 226 Cal. App. 4th 1516 ( 2014 )

Filed 6/17/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re I.P., a Person Coming Under the
Juvenile Court Law.
SAN BERNARDINO COUNTY
CHILDREN AND FAMILY SERVICES, E060213
Plaintiff and Respondent, (Super.Ct.No. J239345)
v. OPINION
M.P.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Cheryl C. Kersey,
Judge. Affirmed.
Pamela Rae Tripp, under appointment by the Court of Appeal, for Defendant and
Appellant.
Jean-Rene Basle, County Counsel, and Jeffrey L. Bryson, Deputy County
Counsel, for Plaintiff and Respondent.
1
On appeal, defendant and appellant M.P. (Mother) contends that the juvenile court
erred in terminating her parental rights as to her seven-year-old son, I.P. (the child),
because the child is an Indian child (see 25 U.S.C. § 1903(4); Welf. & Inst. Code § 224.1,
subd. (a)),1 and the juvenile court failed to follow the required statutory procedures
regarding tribal customary adoptions. For the reasons stated below, we will affirm the
juvenile court’s orders.
I
FACTUAL AND PROCEDURAL BACKGROUND
The child came to the attention of the San Bernardino County Children and Family
Services (CFS) in June 2011 when the child and his seven-year-old half-sister, A.G. (the
children), were found walking by themselves down a busy street in Barstow. Law
enforcement responded and the children led the officers to their home. The officers
found the front door to be wide open and Mother and several other people asleep inside.
The home was dirty, cluttered, and contained very little edible food for the children. The
officers also found smoke pipes and small bags of marijuana and methamphetamine
throughout the home. Mother admitted to using marijuana and methamphetamine on a
daily basis.
The children were very hungry and dirty—their home did not have hot water. The
child looked pale and bony, his eyes appeared weak, and he met the growth weight
1All further statutory references are to the Welfare and Institutions Code unless
otherwise indicated.
2
standard for failure to thrive. Mother was arrested on child endangerment charges and
the children were taken into protective custody.2 The children repeatedly reported that
they wanted to go to the home of their maternal aunt, S.D. (Aunt).3 Following a relative
assessment, the children were placed with Aunt and her husband. Aunt has 4/4 Navajo
blood and is a member of the Navajo Nation.
On June 13, 2011, CFS filed a petition under section 300, subdivisions (b) [failure
to protect] and (g) [no provision for support], alleging that the child, age four, came
within the jurisdiction of the juvenile court. A petition was also filed as to the child’s
half-sister, who had a different father. The petition alleged that the child had suffered or
was at a substantial risk of suffering serious physical harm or illness due to Mother’s
substance abuse, failure to adequately supervise and protect the child, failure to bathe the
child, the child’s failure to thrive, and the living conditions in the home. Regarding the
allegation that the child had been left without any provision for support, the petition
alleged that Mother was arrested and incarcerated for child endangerment and that
Father’s whereabouts were unknown.
At the detention hearing held on June 14, 2011, the juvenile court found a prima
facie case showing that the child came within section 300, and that continuing to allow
2 The whereabouts of the child’s father, R.H. (Father), were initially unknown; a
search later revealed that Father was in state prison. Mother also had another child, L.E.
L.E.’s paternal grandparents have had guardianship of this child since she was two years
old. This appeal does not involve the child’s half-siblings, A.G. and L.E.
3 Aunt reported that in 2008 she had the children in her care because Mother was
“greatly neglecting” the children’s needs.
3
the child to remain in the home of the parent was contrary to the child’s welfare. The
court ordered the child and his half-sister maintained in Aunt’s home. Mother reported
that the children’s maternal grandmother was American Indian, specifically from the
Navajo Tribe.
CFS filed a jurisdiction/disposition report on June 30, 2011. CFS recommended
that the allegations in the petition be found true and that Mother be provided with
reunification services, but that no services be provided to Father because he was found to
be an alleged father. CFS noted that the Indian Child Welfare Act (ICWA) does or may
apply. Mother was in agreement with the children being placed in Aunt’s home.
A court-ordered mediation hearing was held on July 28, 2011. At that time,
Mother submitted to the allegations in the petition. In addition, as to disposition, CFS
and Mother agreed to a case plan to include individual counseling, parenting classes,
substance abuse treatment, random drug testing, and a 12-Step program.
On August 3, 2011, CFS provided ICWA notices to the Colorado River Tribal
Council tribes, the Navajo Nation tribes, and the Bureau of Indian Affairs.
The jurisdictional/dispositional hearing was held on August 5, 2011. Mother
waived her rights and submitted the petition on the social worker’s reports. The juvenile
court sustained the petition, declared the child and his half-sister A.G. dependents of the
court, and adopted CFS’s recommendations. Specifically, the court continued the child
and A.G. in the home of Aunt, ordered reunification services as to Mother and A.G.’s
father, and denied reunification services as to the child’s father.
4
On August 16, 2011, the Navajo Nation (the Tribe) responded indicating the child
and A.G. were eligible for membership and the Tribe was intervening. The Tribe also
noted that it had assigned an ICWA social worker who worked with the Navajo Children
and Family Services to the case. The Tribe requested documents related to the case and
copies of the children’s birth certificates, social security cards, medical records, and
school records. CFS provided the requested documents to the ICWA social worker. The
court found that ICWA did apply.
Mother was making progress in her court-ordered case plan, and by the six-month
review hearing CFS recommended continuing Mother’s reunification services. The child
and A.G. had adjusted well to their relative placement, and appeared comfortable, with
no emotional or developmental concerns. The children were thriving in Aunt’s home,
and had developed a “strong bond” with Aunt. Aunt was committed to giving the
children a safe and nurturing home until the children could return to Mother. Aunt had
also developed a bond with the children; she was “protective . . . and genuinely
concerned about their welfare”; and was observed to be “loving and patient with the
children.” The concurrent plan for the children was legal guardianship with Aunt.
CFS notified the Tribe that a review hearing was scheduled for February 6, 2012,
and that CFS was recommending “No change in orders, services, placement, custody, or
status.” There is no indication in the record that the Tribe responded to this notice or
attended the review hearing.
5
At the February 6, 2012 six-month review, the juvenile court adopted CFS’s
recommendations, continuing reunification services. The court also authorized Mother to
have liberalized and unsupervised visits with the children. However, a few months later,
Mother’s visits reverted back to supervised after she tested positive for amphetamines
and admitted to being under the influence of drugs at the last unsupervised visit.
In July, CFS notified the Tribe that the next review hearing was set for August 6,
2012, and that CFS intended to recommend Mother’s services be terminated.
On July 11, 2012, CFS Social Worker Joanne Watts (SW Watts) signed a form
that checked a box next to the following preprinted language: “[I.P.] is an Indian child
and termination of parental rights would not be in the best interest of the child due to
substantial interference with the child’s connection to his/her tribal community or tribal
membership rights, or the tribe has identified guardianship, long term foster care with a
fit and willing relative or other planned permanent living arrangement for the child.”
CFS filed its 12-month review report on August 6, 2012. CFS recommended the
juvenile court terminate reunification services as to Mother and set a hearing pursuant to
section 366.26 to establish a permanent plan of legal guardianship for the child.4 A
month after Mother completed her outpatient substance abuse program she relapsed and
began using again. She also missed several of her drug testing appointments, was
arrested, and was inappropriate during visits. It was unknown how long Mother could
4 As to A.G., CFS recommended that she be continued in Aunt’s home and that
her father continue to receive reunification services.
6
remain sober. The children were still placed with Aunt and her husband and were doing
well.
The 12-month review hearing was continued to December 10, 2012, for Mother’s
contest. There is no indication in the record that the Tribe attended the August 6, 2012
review hearing.
By the December 10, 2012 18-month-review hearing, Mother had made
substantial progress in her case plan and CFS recommended that the children be returned
to Mother on family maintenance services. On November 20, 2012, CFS mailed the
Tribe a notice of the 18-month review hearing.5 The juvenile court adopted CFS’s
recommendations and returned the children to Mother’s home. There is no indication in
the record that the Tribe responded to this notice or attended the December 10, 2012
hearing.
However, by January 2013, Mother had relapsed and was using marijuana and
methamphetamine, and she was arrested on March 21, 2013. Additionally, there were
new allegations that Mother had physically abused the child and had instructed the
children to lie about how the child sustained his injuries. When the social worker visited
the children’s school, the social worker noticed the child’s eyelid to be swollen and he
had bruising on the left side of his face. The child initially reported that he fell off a
5 The notice also included the social worker’s new recommendation of returning
the children to Mother on family maintenance.
7
scooter, but then stated Mother had hit him after she became angry at him. The children
were taken into protective custody and placed with A.G.’s paternal aunt S.G.
On March 27, 2013, CFS filed a petition under sections 342 (subsequent) and 387
(supplemental). The children were formally detained on March 28, 2013, and maintained
with S.G.
In a jurisdictional/dispositional report for the subsequent/supplemental petition,
CFS recommended no reunification services for Mother. Mother continued to abuse
drugs and had failed to sustain sobriety, resulting in her arrests and abuse of the child.
Mother had been released from jail on March 22, 2012, but was arrested again on April
11 for violating her probation.
The contested jurisdictional/dispositional hearing on the subsequent/supplemental
petition was held on May 2, 2013. Mother was present but in custody of the county jail.
The juvenile court sustained the petition, declared the child a dependent of the court,
and maintained him in the home of S.G. Mother was denied reunification services
pursuant to section 361.5, subdivision (b)(13) (chronic substance abuse), and the court set
a section 366.26 permanency planning hearing for the child.6
CFS filed its section 366.26 report on November 5, 2013. CFS had made several
attempts to contact the Tribe ICWA social worker. After the child was removed in
March 2013, CFS had also been in contact with an ICWA expert, Phil Powers, a member
6 A.G.’s dependency case was dismissed with a family law order in favor of her
father, F.G.
8
of the Cherokee Nation of Oklahoma. CFS had informed the Tribe that it was
recommending adoption by Aunt with termination of parental rights and had faxed a copy
of the 366.26 report to the Tribe. CFS also informed the Tribe that the child was placed
with a relative caregiver, Aunt, who is a Tribe member. The Tribe had not yet provided
CFS with any feedback and the ICWA expert indicated he would be providing a report to
the court.7
Mother was released from jail on July 28, 2013. She continued to use drugs and
was purportedly pregnant. On July 23, 2013, the child was returned to the home of Aunt
and her husband (relative caregivers). The relative caregivers desired to adopt the child
and provide him with a permanent home. The child had previously been in his relative
caregiver’s home for about 18 months when he was initially detained in June 2011. The
relative caregivers were committed to caring for the child and adopting him. They had
known the child all his life and had developed a strong and loving relationship with the
child. The child viewed his relative caregivers as his parental figures and had a strong
attachment to them. The child wanted his relative caregivers to adopt him.
On November 12, 2013, ICWA expert Powers submitted his declaration and
report. In his declaration, Powers noted his expertise, qualifications, education, tribal
affiliation, training, and the background of this case. After reviewing the relevant
documents in this case and interviewing the social worker, a Tribe member, and Aunt on
7 CFS had received a letter from the Tribe ICWA social worker on May 1, 2013,
stating the child was a quarter degree Navajo Indian blood, and had enclosed a copy of
the Certificate of Navajo Indian Blood with the child’s roll number.
9
various occasions, Powers concluded that “[a]ctive efforts [had] been made to provide
rehabilitative and remedial services to prevent the breakup of this Indian Family” and that
returning the child to Mother’s care would cause the child to suffer serious physical and
emotional harm.
On November 13, 2013, Mother filed a section 388 petition to modify the court
order based on her progress in various programs. Mother requested that the child be
returned to her care or that reunification services be reinstated and visitation liberalized.
CFS filed an opposition, noting the child had become very bonded to his relative
caretakers and had adjusted well to the nurturing environment and stability of the home.
CFS also noted that Mother had completed programs while incarcerated and programs as
required by her probation. However, Mother had not provided any documents addressing
her substance abuse and her probation officer believed that Mother was avoiding drug
testing.
A section 366.26 hearing and a hearing on Mother’s section 388 petition were held
on December 9, 2013. Mother was present and the ICWA social worker appeared
telephonically. After the ICWA social worker twice indicated that she could not hear
what was going on, the court stated: “You know what we’re going to do is we’re going
to disconnect the call, and if you want to appear in this department, you’re going to have
to drive here. You’re interrupting court proceedings at this point.” The ICWA social
worker replied, “Okay. Thank you.” It appears the call was then disconnected.
10
The juvenile court then heard and denied Mother’s section 388 petition. The court
thereafter proceeded to the section 366.26 hearing. Following Mother’s testimony and
argument from counsel, the juvenile court found that the child was adoptable and
terminated parental rights.8 The court also found that CFS had complied “with the
noticing requirements” of ICWA and that CFS had “made active efforts to prevent the
breakup of this family that has Indian heritage within the meaning of [the] ICWA.”
Mother subsequently filed a timely notice of appeal.
II
DISCUSSION
Mother argues that the juvenile court committed reversible error when it failed to
order a “tribal customary adoption” report before it terminated her parental rights as
required by the ICWA, the Welfare and Institutions Code, and the California Rules of
Court.9 County counsel responds that Mother forfeited this issue and that an assessment
report was not required to address the option of tribal customary adoption (TCA). In the
alternative, county counsel claims any error was harmless.
8Counsel for CFS noted that the Tribe “concurred with the Department’s
recommendation.” After being advised by CFS counsel that ICWA expert Powers had
reviewed the section 388 petition and that his position was unchanged, Mother’s counsel
waived the right to have Powers in court to testify in person.
9 All further rule references are to the California Rules of Court.
11
A. TCA Procedures
A “‘tribal customary adoption’” is an “adoption by and through the tribal custom,
traditions, or law of an Indian child’s tribe,” which does not require termination of
parental rights. (§ 366.24, subd. (a)(1).) TCA “is an alternative to a standard adoption
and protects both the Tribe’s and the child’s interests in maintaining tribal membership
by formalizing an adoption by an individual selected by the Tribe without terminating
parental rights.” (In re A.M. (2013) 215 Cal.App.4th 339, 348 (A.M.).) TCA has been an
alternative placement plan for Indian children in California since July of 2010. (See In re
H.R. (2012) 208 Cal.App.4th 751, 759 (H.R.).) The Legislature provided for TCA’s in
part because “‘termination of parental rights can disrupt the child’s ability to be a full
member of the tribe or participate fully in tribal life.’” (H.R., supra, at p. 761.) In a
TCA, the adoptive parents may be ordered to provide the child with opportunities to
participate in tribal culture. (See id. at p. 757.)
“Section 366.24 sets forth the procedures to institute a TCA. First, the assessment
report for the selection and implementation hearing must address the TCA option.
(§§ 366.21, subd. (i)(1)(H), 366.24, subd. (b).) If the Tribe decides that TCA is the
appropriate alternative, the Tribe or its designee conducts a home study prior to approval
of the TCA placement, including a check of the Child Abuse Central Index and state and
federal criminal background checks. (§ 366.24, subd. (c)(1), (2), & (3).) This assessment
and the TCA order from the Tribe should be completed prior to the selection and
implementation hearing and the TCA order should be filed with the court prior to the
12
selection and implementation hearing. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (c)(6).)
However, if it is not and the Tribe has identified TCA as the desired permanent
placement plan, the juvenile court may continue the selection and implementation
hearing for up to 120 days to permit the Tribe to complete the process for TCA and file
the TCA order with the juvenile court. (§ 366.24, subd. (c)(6).) The juvenile court has
discretion to continue the hearing for an additional 60 days to complete the TCA process.
(§ 366.24, subd. (c)(6).) At the selection and implementation hearing the parties may
present evidence to the Tribe on the TCA and the minor’s best interest. (§ 366.24,
subd. (c)(7).) Once the juvenile court affords full faith and credit to the TCA order the
child is eligible for TCA placement. (§ 366.24, subd. (c)(8).) After the order has been
afforded full faith and credit, the TCA parents file an adoption petition. (§ 366.24,
subd. (c)(12).) Following required reports to the court, a period of supervision and a final
decree of adoption, the TCA parents have the same rights as any other adoptive parent
and the court terminates jurisdiction over the child. (§ 366.24, subd. (c)(12), (13) &
(14).)” (A.M., supra, 215 Cal.App.4th at p. 348.)
“At the section 366.26 hearing, the juvenile court must find that ‘the agency
consulted with the child’s tribe and the tribe was actively involved in the development of
the case plan and plan for permanent placement, including consideration of whether tribal
customary adoption is an appropriate permanent plan for the child . . . .’ (Cal. Rules of
Court, rule 5.725(d)(8)(C).) If the court finds that the agency did not consult with the
child’s tribe, it ‘must order the agency to consult with the tribe, unless the court finds that
13
the tribe is unable, unavailable, or unwilling to participate.’ (Rule 5.725(d)(8)(D).)”
(In re G.C. (2013) 216 Cal.App.4th 1391, 1398 (G.C.); see § 366.24, subd. (f) [requiring
Judicial Council to “adopt rules of court . . . to implement tribal customary adoption as a
permanent plan for dependent Indian children”].)
B. Failure to Comply With Statutory Procedures
Mother argues that reversal is required because the juvenile court when it set
the section 366.26 hearing did not order an assessment of a TCA pursuant to
section 366.24. (See §§ 366.21, subd. (i)(1)(H), 366.24, subd. (b).) However, Mother
forfeited this argument by failing to assert it in the juvenile court. (G.C., supra, 216
Cal.App.4th at pp. 1398-1399 [father forfeited argument that court did not consider
appropriateness of TCA as the minor’s permanent plan]; see also In re Urayna L. (1999)
75 Cal.App.4th 883, 885-886; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
But even if the contention had not been forfeited, any failure to address TCA was
harmless.
Two published cases have considered similar claims. In A.M., supra, 215
Cal.App.4th 339, the tribe contended on appeal that “TCA was not addressed in any of
the assessments for the selection and implementation hearing.” (Id. at p. 350.) At the
initial selection and implementation hearing, the trial court had ordered a guardianship
and had given the tribe the opportunity to consider TCA. (Id. at p. 342.) However, by
the time of the second selection and implementation hearing, the tribe had not taken any
action to initiate a TCA. (Id. at p. 343.)
14
On appeal, the court found that “[b]ecause there was no tribal order for TCA
before it, the juvenile court had no choice but to consider the traditional alternatives for
permanent plans. [Citation.]” (A.M., supra, 215 Cal.App.4th at pp. 349-350.) The court
emphasized that “the initial decision whether to pursue TCA must come from the tribe.”
(Id. at p. 350.) The appellate court rejected the tribe’s contention that the Department and
the juvenile court were responsible for the “failure to achieve a TCA.” (Ibid.) Although
the TCA law was new at the time of the dependency proceedings, “the Tribe was well
aware that the alternative existed at the time of the first selection and implementation
hearing.” (Ibid.) Since the record showed that “the TCA option” had been discussed by
the parties, including the tribe, “[a]ny error in failing to include TCA in the assessment”
was harmless. (Id. at p. 351.)
In G.C., supra, 216 Cal.App.4th 1391, the father presented similar claims of error
as in this case. He complained that “the selection and implementation report did not
indicate the Department had consulted with the Tribe about tribal customary adoption and
did not address the option of tribal customary adoption. And the juvenile court did not
find the Department had consulted with the Tribe about tribal customary adoption, did
not order the Department to do so, and did not consider the appropriateness of tribal
customary adoption as a permanent plan.” (Id. at p. 1398.)
The G.C. court found the father’s claims were forfeited by his failure to object
during the juvenile court proceedings, but it also found that any error was harmless.
(G.C., supra, 216 Cal.App.4th at p. 1399.) In that case, the mother had Native American
15
heritage, but the father did not, and the child had been placed in a “‘Designated Indian
Home.’” (Id. at p. 1395.) By the time of the selection and implementation hearing, the
mother intended to relinquish her parental rights. Although the tribe initially did not
support termination of parental rights, it informed the juvenile court that in light of the
mother’s intent to relinquish, it did support adoption and termination. (Id. at pp. 1396-
1397.)
In explaining why the procedural errors were harmless, the G.C. court emphasized
that “[t]ribal customary adoption is only an option when the child’s tribe identifies it as
an option. [Citations.]” (G.C., supra, 216 Cal.App.4th at p. 1401.) Although the record
did not reflect that the tribe discussed TCA with the social worker, the record did reflect
that the tribe was involved in the selection of the appropriate permanent plan for the
minor. The court had “no reason to speculate that the Tribe was unaware of tribal
customary adoption as an alternative permanent plan.” (Ibid.) Thus the father failed to
show “a reasonable probability that compliance with the procedural requirements of tribal
customary adoption would have resulted in an outcome more favorable to him.” (Ibid.)
In the instant case, CFS’s section 366.26 report did not specifically address the
option of TCA. Additionally, although CFS did consult with the ICWA expert who made
contact with a tribal representative prior to the selection and implementation hearing, it is
not clear whether CFS or the ICWA expert ever asked the Tribe to specifically consider
the option of TCA. Moreover, even though CFS sent notices and made inquires to the
Tribe’s social worker, the Tribe never responded and never identified TCA as the
16
permanent placement plan, and CFS did not recommend such a plan to the juvenile court.
Section 366.25, subdivision (b)(1)(G), provides that the selection and implementation
report must include “an assessment of the likelihood that the child will be adopted,
when, in consultation with the child’s tribe, a tribal customary adoption, as defined in
Section 366.24, is recommended.” (Italics added.) Thus, omission of an assessment of
the likelihood of TCA was not error under section 366.25, subdivision (b)(1)(G).
In any event, assuming the provisions of section 366.24, subdivision (b), were
required, any error was harmless, as in the cases discussed above. Significantly, the
Tribe never identified TCA as an option, and this court has “no reason to speculate that
the Tribe was unaware of the tribal customary adoption as an alternative permanent
plan.” (G.C., supra, 216 Cal.App.4th at p. 1401; see also A.M., supra, 215 Cal.App.4th
at pp. 350-351; H.R., supra, 208 Cal.App.4th at p. 765 [“tribal customary adoption is an
available option only when identified as such by the child’s tribe”].) Instead, the Tribe
concurred with CFS’s recommendation of adoption with termination of parental rights.
The ICWA expert also recommended adoption by Aunt and her husband. Presumably the
Tribe and the ICWA expert supported the plan of adoption by Aunt because Aunt herself
was a member of the Tribe with tribal ties. A TCA would have required adoption by a
suitable member of the Tribe, i.e., a suitable member of the child’s family, or an
unrelated member of the Tribe. Here, a plan of adoption by Aunt met these requirements.
In sum, because the Tribe never identified TCA as an option; the Tribe and the
ICWA expert concurred with CFS’s recommendation of adoption with termination of
17
parental rights; and the child would be adopted by a relative tribal member, Mother has
failed to show “a reasonable probability that compliance with the procedural
requirements of tribal customary adoption would have resulted in an outcome more
favorable to [her].” (G.C., supra, 216 Cal.App.4th at p. 1401.)
III
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
RAMIREZ
P. J.
We concur:
McKINSTER
J.
MILLER
J.
18