Opinion
NOT TO BE PUBLISHED
Humboldt County Super. Ct. Nos. JV010074-1 & JV010074-2.
Jenkins, J.
Defendant and appellant A.J. (mother) appeals from the juvenile court’s order terminating her parental rights with respect to her minor sons K.T. and L.T., following a hearing pursuant to Welfare and Institutions Code section 366.26. Mother contends that under the Indian Child exception to adoption (§ 366.26, subd. (c)(1)(B)(vi)(II)), the Klamath Tribe’s expressed preference for guardianship over adoption establishes a compelling reason for determining that adoption and termination of parental rights would not be in the best interests of the children and that the trial court lacked discretion to decide otherwise. Alternatively, mother contends that assuming the court retains discretion under the Indian Child exception to chose a permanent plan different from the Tribe’s stated preference for guardianship, the court’s selection of adoption as the plan for this minor constitutes an abuse of discretion. Because we conclude that mother’s contentions lack merit, we affirm the order terminating parental rights.
Further statutory references are to the Welfare and Institutions Code unless otherwise noted.
Mother’s unopposed Motion for Judicial Notice, filed on January 11, 2010, is granted.
Facts and Procedural Background
Humboldt County Department of Health and Human Services (Department) filed the current section 300 petition with respect to K.T. and L.T. (minors) on December 1, 2006, alleging failure to protect under section 300, subdivision (b), and failure to provide support under section 300, subdivision (g). The petition states that K.T. (age 9) was born in July 1997 and L.T. (age 8) was born in August 1998. The detention report filed on December 4, 2006, states that Child Welfare Services (CWS) received a referral from the minors’ elementary school on November 29, 2006 because the minors had not been picked up after school. School authorities reported that mother’s boyfriend, T.B., had called the school around 4 p.m. and said he and mother could not pick up the minors because they were at an appointment in Eureka. The school called T.B.’s parents but they were unwilling to come and get the children. School authorities reported that the minors had frequently been left after school without means of transport home because no one came to pick them up on time. The detention report states that CWS picked up the minors at their elementary school at 5.20 p.m. and placed them in foster care. After a hearing on December 4, 2006, the court, after making appropriate findings, ordered the minors detained and that services, including visitation, be provided to mother. Also, the court set a jurisdictional hearing for January 2, 2007.
The jurisdiction report filed on January 3, 2007, notes that the Indian Child Welfare Act (ICWA) applies and states that the minors are enrolled members of the Klamath tribe. The report notes that mother received CWS services in connection with her seven children from December 1993 through October 2003. It also notes the minors were the subject of a previous section 300 petition and detention initiated in March 2001 and closed in October 2003 when the minors were reunified with mother. The juvenile court entered jurisdictional findings and orders on January 4, 2007. The court sustained the allegations of the petition (as amended in court on January 3, 2007) under section 300, subdivision (b), ordered that the minors remain in foster care and set the dispositional hearing on January 16, 2007.
The disposition report filed on January 16, 2007, notes the minors are attending school regularly and while they have adjusted well to their placement and separation from mother, they both would like to be returned to mother’s care. The report also notes the minors currently remain placed with a local foster family that is not a Native American home and that a relative or non-relative extended family placement or Tribal home is being sought.
The report notes that the minors’ alleged father has not been involved in their lives, has not responded to notices and that CWS is not offering services to him. The alleged father never appeared in this case.
At an uncontested dispositional hearing on January 16, 2007, the court received testimony from a CWS social worker Winnie Williams. Williams testified that she helped prepare the disposition report and is aware of the considerations required under ICWA with respect to removing the minors from mother’s custody. Williams stated that in her opinion the minors could not remain with mother without the likelihood of suffering serious emotional or physical damage. Also, Williams stated that neither the Klamath Tribe nor the Yurok Tribe (alleged father’s tribe) offered an alternative to removal of the minors from mother. Following the hearing, the court entered a dispositional finding, among others, that active efforts had been made to provide services and programs designed to prevent the breakup of a possible Indian family and declared the minors dependents of the juvenile court. The court’s decision to remove the minors from mother’s care was based on these facts: “[Mother] was unable to adequately supervise the children, made inappropriate plans for their after school care, and she was unable to permanently benefit from the previous CWS services.” The court also ordered services and visitation to mother as provided in the case plan and set a six-month review on July 16, 2007.
The six-month review hearing did not take place until September 19, 2007. The six-month status review report filed on that date states that the minors have been placed in a Native American, relative placement since February 5, 2007. The report notes mother has visited the minors at the home and can call them on the telephone.
Regarding the minors, the six-month status report states that they are in “an outstanding placement. The foster dad is a paternal third cousin to the boys. [The foster parents] are active with them in their school programs and had the boys on the school wrestling team this last school year. Currently the boys are starting football. In addition, [the foster parents] have been taking the boys on weekends throughout CA to Native Gatherings for dances.” The report relates that the foster parents “have been overwhelmed at times with the issues the boys” speak of, such as their worries about their mother because of the violence they witnessed between her and Tharren, and their memories of seeing their mother and T.injecting drugs and having sex.
At the six-month review hearing on September 19, 2007, the juvenile court adopted the Department’s findings and orders, and set the 12-month review for January 2, 2008.
Following several continuances, a contested 12-month review was held on May 7, 2008. The court received three reports in connection with the 12-month review-a status report dated December 31, 2007 (December 2007 report), a first addendum dated February 5, 2008 (February 08 addendum), and a second addendum dated April 9, 2008 (April 08 addendum).
The December 2007 report indicates that mother was recently arrested on a failure to appear in court and that she was released on or about December 20, 2007. The probation officer reported to the social worker that mother will be sentenced on January 7, 2008 on the charge of “Petty Theft with a prior jail term for Theft/Burglary/Robbery.” Further, the December 2007 report states that mother has shown no ability to remain free of drugs and alcohol, has repeatedly been arrested for public drunkenness and has failed to enter a substance abuse treatment program. Additionally, the report notes mother does not have stable housing and that she and her boyfriend T.are living with a relative in Arcata. Also, mother has not participated in or completed domestic violence counseling or a parenting program. The December 2007 report opines that at this juncture there is not a substantial probability of the minors returning home by January 2, 2008, and recommends that family reunification services (FRS) be terminated with respect to mother and that the court schedule a 366.26 hearing.
The February 08 addendum notes that mother is incarcerated. The Probation Officer informed the Department that mother is being held for 180 days and that she can be released to Drug Court when a residential treatment facility is located. The February 08 addendum states that mother has requested the opportunity to complete a treatment program, follow her probation and “have the chance to reunify with her children.” The February 08 addendum recommends that the court order six more months of FRS.
The April 08 addendum also states that on or about March 9, 2008, mother left the Jordan Recovery Center (Center) on a pass to attend her great grandmother’s funeral and failed to return. Mother later phoned the Center and was told she could re-enter the residential program if she returned to the Center by March 17, 2008. Mother did not return by that date and has not been heard from since. The April 08 addendum further states that “[i]n light of the new information, [CWS] respectfully recommends that [FRS] to the mother be terminated and a 366.26 hearing be set.” Following the contested 12-month review hearing on May 7, 2008, the juvenile court adopted the permanent plan of placement of the minors with their current caregivers, terminated FRS to mother, and set a 366.26 hearing for September 2, 2008.
The 366.26 hearing was continued several times between September 2, 2008, and April 8, 2009, when the court first heard testimony in the matter. In connection with the section 366.26 hearing, the juvenile court received a section 366.26 report and four addendum reports to the section 366.26 report.
The section 366.26 report dated August 4, 2008, states that for the past six months the minors have had ongoing contact with their three older sisters and their mother through visits arranged by CWS, and have also had written correspondence with mother. In its assessment and evaluation, the section 366.26 report states that the minors have been in the care of the current foster family since February 5, 2007. The report notes that prior to placement the minors led an unstable lifestyle in mother’s care and witnessed drug use and domestic violence. Since placement, the report notes, the minors have “made great strides in their educational goals, behavior and emotional health.” According to the report, the minors do not wish to return to the life they led with mother, feel bonded to their foster parents and have been connected with their Native American ancestry.
Attached to the section 366.26 report is a section 366.26 Adoption Assessment prepared by the State of California Health and Human Services Agency Department of Social Services (CDSS). The CDSS adoption report notes the minors are members of the Klamath Tribe (Tribe), that the Tribe does not wish to see termination of mother’s parental rights but supports the minors’ placement in the current foster home. Foster mother is a member of the Hopland Band of Pomo Indians and foster father is a member of the Federated Indians of Graton Rancheria. The minors’ birth father is a member of the Dry Creek Rancheria of Pomo Indians but the minors cannot enroll in that tribe because they are already enrolled in the Klamath Tribe. Regarding the minors’ attitude toward placement and adoption, the CDSS report states L.T. still loves his mother but wants to be adopted by his foster parents, whom he appears to view as his psychological parents. The report states that K.T. “is more ambivalent regarding adoption... but [it] is clear he does not want to move [and]... views his foster parents as his psychological parents.” Also, the report notes that both K.T. and L.T. are bonded to their foster brother. The CDSS report concludes with the following recommendation: “While the CDSS understands the Klamath Oregon Tribe’s preference to avoid the termination of parental rights, it also understands that the Tribe has, and does, support adoption for some cases. It is also the understanding of CDSS that the children would retain their tribal memberships and cultural rights after adoption. Recognizing that this placement meets the highest placement preference under the [ICWA], with the prospective adoptive family being Native American and related to the children, and understanding that they have expressed their desire to legally commit to the minors through adoption, the CDSS respectfully recommends that the Juvenile Court terminate the parental rights of [mother and father] and order a permanent plan of adoption for the children.”
The first addendum dated August 8, 2008, recites the CDSS’s recommendation for adoption and states that the Klamath Tribe has informed the Department that it recommends a permanent plan of guardianship with the current care providers. The first addendum recommends that the juvenile court order an Indian Expert to review the minors’ file and report on whether adoption in the best interests of the minors.
The second addendum dated October 15, 2008, attaches the report of Indian Expert Keith Taylor, who was appointed to review the activities and services provided by CWS for ICWA compliance and to review the minors’ current foster placement to determine if it is culturally appropriate, in compliance with ICWA. In his report, Taylor states that CWS complied with ICWA, in that CWS made numerous active efforts for reunification but mother failed to demonstrate a stable lifestyle that would warrant reunification. Also, Taylor noted that the Klamath Tribe is opposed to adoption but if the minors were adopted it would not affect their membership in the Tribe. Taylor opines that guardianship of the minors with the current care providers is in the minors’ best interests. The second addendum states that CWS agrees it is in the minors’ best interests to remain with the current care providers and recommends that the court consider adoption of the minors as a permanent plan.
At the section 366.26 hearing held on April 8, 2009, the Department submitted the matter on the basis of the reports, subject to rebuttal. Mother called Candy Kirk, who testified that she is a child welfare worker employed by the Klamath Tribe and oversees ICWA cases for the Tribe. In that capacity, Kirk reviewed the minors’ file but had not met with them. Kirk stated that the Tribe wishes the court to adopt guardianship as the permanent plan, not adoption. In the Tribe’s view, adoption would “sever[] ties to [the minors’] Klamath people” whereas through guardianship they “would have more contact and ties through the Klamath Tribes.” Kirk stated the Tribe’s concerns in this regard were not allayed by the fact that the current caregivers are Native American because the Klamath Tribe has different ceremonies and traditions than the foster parents’ tribes. Kirk also stated the Tribe opposed adoption because the Tribe does not believe in adoption and has strong beliefs that parental ties should be maintained.
Kirk testified further on redirect examination at the continued section 366.26 hearing on May 28, 2009. Kirk stated she had met and spoke with the minors since the last court hearing. Kirk stated that the Tribe’s position had not changed and was still in favor of guardianship. Also, Kirk stated that since the last hearing she’d had the opportunity to research the Tribe’s position on adoption. Kirk stated that the Tribe’s belief is that adoption is not in the best interest of the child because “the tribe basically is looking at keeping the family connections.” On re-cross examination, Kirk stated that with respect to the minors’ family connections, the Tribe is “looking at different relatives that the children don’t know at this time” and at getting them acquainted with relatives because “they don’t know a lot of their family back in Klamath.” Kirk acknowledged the Tribe wanted “to create a connection... [not] keep a connection.”
The section 366.26 hearing was further continued so counsel could brief the issue of the propriety of adoption. Subsequently, at a hearing on June 23, 2009, the juvenile court entertained oral argument from counsel on whether it should adopt a permanent plan of adoption or guardianship. The juvenile court issued its section 366.26 ruling at a hearing on June 30, 2009. The court stated it had concluded it was not bound by the Tribe’s preference for guardianship, even thought the Tribe’s input on the issue is “entitled to great weight.” The court adopted the findings and orders set forth in the section 366.26 report, terminated mother’s parental rights and ordered adoption as the permanent plan. Mother filed a timely notice of appeal on July 1, 2009.
Discussion
A. Legal and Statutory Framework
Where, as here, reunification services have been terminated and a section 366.26 hearing set, “the focus of a dependency proceeding shifts from family preservation to promoting the best interest of the child including the child’s interest in a ‘placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]’ [Citation.] The purpose of a section 366.26 hearing is to ‘provide stable, permanent homes for’ dependent children. (§ 366.26, subd. (b).)” (In re Fernando M. (2006) 138 Cal.App.4th 529, 534 (Fernando M.).)
“At a section 366.26 hearing the juvenile court has three options: (1) to terminate parental rights and order adoption as a long term plan; (2) to appoint a legal guardian for the dependent child; or (3) to order the child be placed in long-term foster care. (§ 366.26, subd. (b).)” (Fernando M., supra, 138 Cal.App.4th at p. 534.) However, “[a]t this stage of the proceedings, if an appropriate adoptive family is or likely will be available, the Legislature has made adoption the preferred choice. [Citation.]” (In re Celine R. (2003) 31 Cal.4th 45, 49.) Moreover, “[i]f it is likely the child will be adopted, the court must choose that option-and as a result terminate the natural parents’ parental rights-unless it ‘finds a compelling reason for determining that termination would be detrimental to the child due to one or more’ of specified circumstances.” (Ibid., italics added; In re Jasmine T. (1999) 73 Cal.App.4th 209, 212 [absent an enumerated exception the juvenile court is required to select adoption as the permanent plan].) “The burden falls to the parent to show that the termination of parental rights would be detrimental to the child under one of the exceptions. [Citation.]” (Fernando M., supra, 138 Cal.App.4th at p. 534.)
Mother does not challenge the juvenile court’s finding that the minors are adoptable.
Mother claims the benefit of the Indian child exception to termination of parental rights and adoption as the permanent plan. As set forth in section 366.26, subdivision (c)(1) (“subdivision (c)(1)”), the Indian child exception provides that the court “shall terminate parental rights unless ... [t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances:... (vi) The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to:... (II) The child’s tribe has identified guardianship... or another planned permanent living arrangement for the child.” (§ 366.26, subd. (c)(1)(B)(vi)(II).)
B. Analysis
1. Application of The Indian Child Exception
Mother contends that under a proper construction of the Indian child exception the juvenile court must enter an order selecting guardianship as the permanent plan, over adoption, where the tribe has identified guardianship as its preferred permanent plan. Mother asserts this construction is compelled by the language of the Indian child exception which states that “[t]he child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, ... [t]he child’s tribe has identified guardianship” as the permanent plan. (§ 366.26, subd. (c)(1)(B)(vi)(II), italics added.) According to mother, this statutory language constitutes a determination by the Legislature that the Tribe’s identification of guardianship establishes a compelling reason not to terminate parental rights, and therefore the court may not decide otherwise. In other words, under mother’s construction of the Indian child exception, the tribe’s identification of guardianship establishes, by legislative fiat, a compelling reason which precludes adoption of the minor and removes the trial court’s discretion to select adoption, based upon the record, as the permanent plan.
We reject mother’s interpretation of the Indian child exception. To the contrary, our review of the statutory provisions at issue reflects a clear and unambiguous legislative intent to afford juvenile courts discretion to determine the applicability of the exceptions set forth in subdivision (c)(1)(B) of section 366.26, including the Indian child exception.
In this regard, section 366.26 provides that “the court shall terminate parental rights”... unless the court determines that the circumstances described by an exception constitute “a compelling reason for determining that termination would be detrimental to the child.” (§ 366.26, subd. (c)(1)(B).) Section 366.26 also describes the circumstances under which courts may, but are not required to, depart from the Legislature’s preference for termination of parental rights and selection of adoption as the permanent plan. (See § 366.26, subd. (c)(1)(B)(i)-(vi); In re Tabatha G. (1996) 45 Cal.App.4th 1159, 1164 [noting that subparagraph (B)(i)-(vi) sets forth the enumerated exceptions to adoption].) The Indian child exception is one of six enumerated exceptions set forth in subparagraph (B). (See § 366.26, subd. (c)(1)(B)(i)-(vi).) In contrast to subdivision (c)(1)(B), subdivision (c)(2) sets forth circumstances, including those applicable to an Indian child, where “the court shall not terminate parental rights.” (§ 366.26, subd. (c)(2).) The Legislature’s grant of judicial discretion in determining whether compelling reasons support an alternative to adoption in subdivision (c)(1)(B) stands in stark contrast to its use of mandatory language in subdivision (c)(2), and establishes that the Legislature clearly knew how to foreclose the exercise of judicial discretion when it intended to do so. In our view, the permissive language used in subdivision (c)(1)(B)(i)-(vi) reflects the Legislature’s intent to confer judicial discretion in determining whether the enumerated exceptions, including the Indian child exception, provide a compelling reason to depart from the statutory preference favoring adoption at the permanency planning stage.
Several recent decisions by our sister districts are in accord with our conclusion on this point. In In re T.S. (2009) 175 Cal.App.4th 1031 (T.S.), the appellate court held that “a juvenile court is not obligated to adopt the permanent plan designated by a child’s tribe without conducting an independent assessment of detriment.” (Id. at p. 1040, fn. omitted.) The court in T.S. reasoned that “[t]he exceptions to adoption relating to Indian children, like the other enumerated exceptions to adoption, are contained in section 366.26, subdivision (c)(1)(B), and, therefore, apply only if the described circumstances are present and there is a compelling reason for determining that termination of parental rights would be detrimental to the child as a result of such circumstances. [] Had the Legislature intended to preclude the court from ordering a permanent plan of adoption when a tribe has identified another permanent plan, it could have placed this provision in the next subdivision of section 366.26, subdivision (c)(2), which enumerates circumstances under which the juvenile court ‘shall not terminate parental rights, ’ and includes other provisions involving Indian children. [] Instead, the provision was added to a subdivision that contains plain, unambiguous language conferring discretion upon the juvenile court to reject the exceptions in the absence of compelling evidence of detriment.” (T.S., supra, 175 Cal.App.4th at p. 1040; see also In re A.A. (2008) 167 Cal.App.4th 1292, 1325 [rejecting the argument that termination of parental rights was precluded by the Tribe’s preference for guardianship because “although guardianship may have served the Tribe’s interests, the court, in assessing the children’s best interests, was not compelled to agree with the Tribe”].)
Mother advances several other arguments in support of her interpretation of the Indian child exception. We find them unpersuasive. Mother contends an interpretation of subparagraph (B)(vi) affording juvenile courts discretion to determine whether to terminate parental rights would render surplusage, and of no meaning or effect, the following italicized language in the subparagraph: “The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including...: The child’s tribe has identified guardianship....” (§ 366.26, subd. (c)(1)(B)(vi)(II), italics added.)
This contention is meritless. As we have previously stated, subdivision (c)(1)(B) allows juvenile courts to opt out of selection of termination and adoption as the preferred permanent plan for minors, but states that courts must “find[] a compelling reason for determining that termination would be detrimental to the child” as a prerequisite to entering such an order. Subparagraph (B)(vi) is one of six exceptions subsumed within subdivision (c)(1)(B). Mother fails to muster any persuasive support for her argument that the Legislature intended to cabin the juvenile court’s exercise of discretion with respect to subparagraph (B)(vi), in a manner different than the exceptions which precede it. Moreover, mother fails to identify any language within subdivision (c)(1)(B)(vi) to support her strained interpretation that the Tribe’s preference for guardianship, in and of itself, establishes a compelling reason sufficient to reject the legislative preference for termination and adoption. Indeed, the last sentence of subdivision (c)(1)(B)(II) states: “If the court finds that termination of parental rights would be detrimental to the child pursuant to clause (i), (ii), (iii), (iv), (v), or (vi) [the Indian child exception], it shall state its reasons in writing or on the record.” (§ 366.26, subd. (c)(1)(B)(II).) This requirement that the court set forth its reasons in support of a finding of detriment bolsters our conclusion that the Legislature intended to afford courts discretion in determining the applicability of the exceptions set forth in subdivision (c)(1)(B).
Mother further contends that our statutory interpretation produces an absurd result because in determining the detriment to an Indian child due to termination of parental rights a trial court “cannot meaningfully ‘weigh’ the relative importance of Indian tribal values regarding what kind of permanent plan is in the best interests of the child.” On the contrary, our interpretation of the Indian child exception respects the context and structure of the statute and its results are those intended by the plain meaning of the statute. Our interpretation reflects that the focus at permanency planning stage is “promoting the best interest of the child, ” which includes “the child’s interest in a ‘placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child. [Citation.]’ [Citation.]” (Fernando M., supra, 138 Cal.App.4th at p. 534.) The Tribe’s preference in the matter is but one of the factors, albeit an important one, that the trial court must consider in exercising is discretion on whether to override the Legislature’s preference for termination of parental rights and adoption as the permanent plan.
Mother also asserts that the Legislature added the Indian child exception in response to In re Laura F. (2000) 83 Cal.App.4th 583, in which the appellate court held that the full faith and credit clause of the United States Constitution did not compel the trial court to apply the Tule River Tribe’s statutory law declaring that adoption is not in the best interest of a child tribal member. The Legislature “well knows how to” amend a statute in direct response to a judicial decision it disfavors (People v. Davis (1994) 7 Cal.4th 797, 828). Mother, however, points us to nothing in the statutory history suggesting that the Legislature’s enactment of the Indian child exception was a direct response to the In re Laura F. decision.
Finally, mother relies on the following reference contained in a report by the Senate Judiciary Committee (Senate report) on Senate Bill (Sen. Bill) 678: “This bill would, however, create another exception to the termination of parental rights for Indian children only. This exception would provide that a court may find a compelling reason for not terminating parental rights... if the child’s tribe has identified guardianship... or another planned permanent living arrangement for the child. These provisions would essentially empower a tribe to veto the termination of parental rights by identifying a permanent living arrangement for the child. Although concerns have been expressed about the wisdom of such a policy, the sponsor maintains that it is appropriate to require a state court to consider the alternatives to termination of parental rights provided by a tribe. Tribes may have different cultural and familial values that do not necessarily conform to the strong presumption in our law that permanence is always in the child’s best interest. Accordingly, these different values should be accorded appropriate weight by permitting tribes to identify guardianship... or another permanent living arrangement for the child to avoid the termination of parental rights.” (Sen. Com. on Judiciary, com. on Sen. Bill 678 (2005-2006 Reg. Sess.), as amended Aug. 22, 2005, p. 22.)
The Indian child exception was included in Senate Bill 678, a bill that added or revised numerous provisions in the Family, Probate, and Welfare and Institutions Code relating to Indian children to, among other things, “authorize a tribe to participate in dependency proceedings involving an Indian child, as specified.” (Legis. Counsel’s Dig., Sen. Bill No. 678 (2005-2006 Reg. Sess.) Stats. 2006, ch. 838, Summary Dig., p. 90.)
We agree with the T.S. court’s assessment of this language in the Senate report: “Appellant relies on a statement in the Senate Judiciary Committee’s analysis of Senate Bill No. 678 (2005-2006 Reg. Sess.), which added the exception to adoption at issue here, that the provision ‘would essentially empower a tribe to veto the termination of parental rights by identifying a permanent living arrangement for the child.’ [Citation.] However, this statement is lodged in a paragraph with other language that suggests the juvenile court’s determination is discretionary. Thus, the analysis states that, under the provision, the court ‘may find a compelling reason for not terminating parental rights’ when the child’s tribe identifies a different permanent plan and the court would be required ‘to consider the alternatives to termination of parental rights provided by a tribe.’ [Citation.] When evaluated in this context, the single, fleeting reference in the legislative history to a tribe’s ‘veto power’ is insufficient to negate the meaning of the statute derived from its plain language and its overall design.” (In re T.S., supra, 175 Cal.App.4th at pp. 1040-1041.) Accordingly, we reject mother’s suggestion that the Indian child exception provides the Tribe with a veto power over whether adoption and termination of parental rights is in the best interest of the child.
We are also unconvinced by mother’s attempt to bolster the significance of the “veto” language by claiming that it parallels language in Section 1356.21 of the Federal Code of Regulations (45 C.F.R. § 1356.21 (2009)). Section 1356.21 sets forth certain requirements states must follow in order to obtain federal funding under the Federal foster care program. (45 C.F.R. § 1356.21(a) (supra).) Regarding permanency planning, the section states, “If the State concludes, after considering reunification, adoption, legal guardianship, or permanent placement with a fit and willing relative, that the most appropriate permanency plan for a child is placement in another planned permanent living arrangement, the State must document to the court the compelling reason for the alternate plan. Examples of a compelling reason for establishing such a permanency plan may include:... (iii) the Tribe has identified another planned permanent living arrangement for the child.” (45 C.F.R. § 1356.21(h)(3)(iii) (supra), italics added.) Patently, section 1356.21 accords no veto power to the Tribe. In fact, the regulation clearly provides that the State makes the determination on permanent placement and that it may consider the Tribe’s identification of another planned permanent living arrangement as a compelling reason to choose an alterative to adoption, guardianship, or placement with a fit and willing relative.
In sum, the statutory purpose of section 366.26 is to implement the legislative preference for termination of parental rights and the selection of adoption as the permanent plan for an adoptable child. With respect to an adoptable Indian child, however, the Legislature struck a careful balance in section 366.26 between the competing concerns for permanency planning and the impact of that planning on Native American families, tribes and the mandates of the ICWA. In this regard, the statutory framework clearly and specifically outlines both the circumstances under which courts may exercise discretion in addressing such competing concerns (see § 366.26, subd. (c)(1)(B)(i)-(vi)), and the circumstances under which the exercise of discretion in the matter is precluded (see § 366.26, subd. (c)(2)). Regarding the application of the Indian child exception under section 366.26 subdivision (c)(1)(B)(vi)(II), the Legislature has accorded courts the discretion to decide whether the tribe’s preference for guardianship constitutes “a compelling reason for determining that termination would be detrimental to the child....” (§ 366.26, subd. (c)(1)(B).) Had the Legislature intended the tribe’s preference for guardianship to automatically trump its preference for adoption without a prerequisite finding by the court that the tribe’s preference for guardianship is a compelling reason to determine that the termination of parental rights would be detrimental to the child, the Legislature would have included the Indian child exception in subdivision (c)(2). Therefore, the Indian child exception at section 366.26 subdivision (c)(1)(B)(vi), properly construed, affords the juvenile court discretion to determine whether the tribe’s preference for guardianship constituted a compelling reason not to terminate parental rights and order a permanent plan of adoption, and accordingly we conclude the court did not err in this regard.
At oral argument, appellant’s counsel offered what she styled as a clarification of the position, as stated in her opening brief, that under the Indian child exception the tribe’s preference for guardianship essentially acts as a veto precluding the juvenile court from terminating parental rights and selecting adoption as the permanent plan. In its place, counsel offered the following statutory interpretation of the Indian child exception: After a tribe identifies guardianship as being in the best interest of the Indian child, the normal presumption under section 366.26 that termination of parental rights and selection of adoption as the permanent plan is in the best interest of the child no longer applies. Rather, upon the tribe’s identification of guardianship, the presumption is that preservation of parental rights and guardianship is in the best interest of the child. The burden then shifts to the Agency to show that preservation of parental rights and guardianship would be detrimental to the child.
2. Adoption v. Guardianship the Permanent Plan
Finally, mother contends that even if the trial court had discretion to determine whether there was a compelling reason not to select adoption as the permanent plan, the trial court abused its discretion by denying the Indian child exception to adoption and termination of parental rights. We review the court’s finding regarding the applicability of a statutory exception to adoption for substantial evidence. (In re Autumn H. (1994) 27 Cal.App.4th at 567, 576-577.) In reviewing the record for substantial evidence, we do not consider the credibility of witnesses, attempt to resolve conflicts in the evidence, or evaluate the weight of 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 substantial evidence supporting a contrary finding. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947.) On appeal, the parent has the burden of showing there is no evidence of a sufficiently substantial nature to support the court’s finding. (Ibid.)
Here, the evidence shows that the foster father and prospective adoptive father is a family member and paternal third cousin to the minors. For that reason, the CDSS adoption report stated that the minors’ foster home placement met the highest placement preference under ICWA. (See 25 U.S.C. § 1915(b)(i) [preference must be given to placing Indian child with a member of the child’s extended family].) The foster parents are both Native American and enrolled tribal members of the Hopland Band of Pomo Indians (foster mother) and the Federated Indians of Graton Rancheria (foster father). The foster parents nurture the minors’ connection to their Native American ancestry by taking them to tribal gatherings and dances throughout California. Moreover, adoption by the foster parents does not affect the minors’ tribal membership and cultural rights in the Klamath Tribe. Also, the Klamath Tribe did not object to the minors’ placement with the foster parents, nor did the Tribe offer an alternative placement or living arrangement suitable for the minors. Indeed, the evidence showed that at the time of the section 366.26 hearing in April 2009, when the minors were over ten and eleven years old respectively, their connection with other family members in the Klamath Tribe was non-existent and that the tribe hoped to “create a connection... [not] keep a connection.” In sum, there is ample substantial evidence to support the trial court’s decision that the Tribe’s preference for guardianship over adoption was not a sufficiently compelling reason to preserve mother’s parental rights and select guardianship over adoption. (Cf. In re A.A., supra, 167 Cal.App.4th at p. 1324 [parents had evidentiary burden to establish parental rights termination would interfere substantially with children’s connection to tribal community].) Accordingly, the trial court’s selection of adoption and termination of parental rights as the permanent plan for the minors must be affirmed.
Disposition
The juvenile court’s order terminating mother’s parental rights and selecting adoption as the permanent plan for the minors is affirmed.
We concur: Pollak, Acting P.J., Siggins, J.
Appellant’s “clarification” at oral argument is the equivalent of raising a new argument in the reply brief. Arguments raised for the first time in a reply brief need not be addressed absent a showing of good cause for the party’s failure to raise them earlier. (City of Oakland v. Hassey (2008) 163 Cal.App.4th 1477, 1490; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764.) Even if we deemed appellant had shown good cause for her failure to raise this argument earlier and exercised our discretion to consider it, we would reject it on the merits. In this regard, appellant provided no case law to support her contention that, contrary to general rule, the Agency has the burden of proof to show that the Indian child exception does not apply. (See In re A.A., supra, 167 Cal.App.4th at p. 1321 [proponent of exception to adoption bears the burden of proof on the exception].) Furthermore, the language of the Indian child exception itself contains nothing to indicate that the Legislature intended to set up the elaborate burden-shifting mechanism posited by appellant.