Opinion
F064251
09-05-2012
In re ADAM L., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. MICHAEL L., Defendant and Appellant.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 515558)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
This is the second appeal involving Adam L. In our first opinion (In re Adam L. (Jan. 13, 2012, F062458) [nonpub. opn.] (Adam L.)), this court upheld the juvenile court's decision to deny the motion of the Hopi tribe (the tribe) to transfer jurisdiction of the dependency proceeding to the tribal court. We concluded the tribe had delayed unreasonably as the transfer was requested during the permanency planning hearing, some 20 months after the tribe had been notified of the dependency proceedings.
In this appeal, Adam's father, Michael L., contends the juvenile court abused its discretion when it terminated his parental rights and failed to find tribal customary adoption as the preferred plan for Adam. Michael also argues substantial evidence did not support the finding of good cause to deviate from the placement preferences under the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.).
We disagree and will affirm the juvenile court's order.
FACTUAL AND PROCEDURAL SUMMARY
We summarize the facts and holding of our first opinion involving the dependency of Adam. Michael is the presumed father of Adam. Adam was 11 months old in July 2009. Michael was incarcerated and Adam's mother (mother) had been receiving voluntary services related to her substance abuse. Mother was ejected from a clean and sober living facility when she relapsed. A petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g) was filed on behalf of Adam. The petition alleged that Michael was incarcerated and both parents had a history of substance abuse and failed treatment. It also was alleged that Adam had chronic respiratory problems and had been hospitalized.
The summary is taken from our opinion, Adam L., supra, F062458.
All further statutory references are to the Welfare and Institutions Code.
The juvenile court assumed jurisdiction and notice of the proceedings was sent to the tribe. Eventually, the section 366.26 hearing was confirmed for January 21, 2011, with notice of the hearing served on the tribe. The report for the permanent plan hearing noted that as of September 2, 2010, Adam was an enrolled member of the tribe. The tribe, however, still had not notified the Stanislaus County Community Services Agency (Agency) whether it intended to intervene or transfer the case. The Agency's report recommended termination of parental rights and adoption of Adam by his current foster family, with whom Adam had bonded. Adam referred to his foster parents as "mommy" and "daddy." He had been living with his foster parents since October 2009.
At the January 21, 2011, permanent plan hearing, the tribe appeared by phone and asked to intervene. Michael was present at the January 21 hearing and stated he agreed Adam should be adopted by his foster parents. When asked if he had a choice between Adam being placed in a Hopi-approved home or staying with the foster parents, Michael responded that he preferred Adam stay with the foster parents. The juvenile court ultimately continued the permanent plan hearing to allow the tribe to file papers supporting its request to intervene.
On March 14, 2011, one week before the continued permanent plan hearing, the tribe filed a two-page motion to transfer the case to the tribe's children's court. On March 16, the Agency opposed the transfer, citing unreasonable delay by the tribe as good cause to deny the transfer.
The Agency filed an addendum report that included a bonding study. Dr. Cheryl Carmichael prepared the bonding study. Carmichael opined that "There is no question that [Adam's] primary attachment is to the foster mother first and foremost." Adam suffered emotional withdrawal and separation anxiety when separated from the foster mother, which Carmichael believed was primarily the result of Adam's multiple placements before being returned to the foster mother. Carmichael concluded, "To move this child again would be detrimental to his continued growth and development and his ability to firmly attach and trust his caretakers."
Ultimately, the permanent plan hearing was held on May 10, 2011. Adam's social worker, Nancy Griggs, testified at the hearing. Griggs stated that she had placed Adam with his current foster family on October 20, 2009. No party, including the tribe, had asked her to change the placement. On December 3, 2009, the tribe's social worker told Griggs to leave Adam in his current placement, even though Griggs had made it clear this was not an ICWA-compliant placement. Griggs was never contacted about changing Adam's placement. Michael's great-aunt (great-aunt) never asked to be considered for placement and the tribe never asked the Agency to consider great-aunt. The tribe declined to present any evidence.
The juvenile court determined the tribe had delayed unreasonably before seeking a transfer and denied the transfer. The tribe did not appeal; Michael filed an appeal. In our first opinion, this court upheld the juvenile court's decision to deny the motion of the tribe to transfer jurisdiction of the dependency proceeding to the tribal court, concluding the tribe had delayed unreasonably in that the transfer was requested during the permanency planning hearing some 20 months after the tribe had been notified of the dependency proceedings.
After our first opinion was filed, further proceedings occurred. A section 366.26 hearing was set for August 2, 2011. At the August 2 hearing, Walter Edd, a Hopi social worker for the tribe, asked for a continuance, which was granted. A continued hearing was set for September 6, 2011, and Edd was advised the juvenile court was not inclined to grant any further continuances.
At the September 6, 2011, continued hearing, Marilee Mai was qualified as an ICWA expert pursuant to section 224.6, subdivision (c). Mai testified (1) custody of Adam by either parent likely would result in serious physical or emotional harm to Adam; (2) the Agency had engaged in active efforts to prevent the breakup of the Indian family; (3) Adam's current placement was not appropriate under ICWA guidelines; and (4) multiple moves would not be in Adam's best interests.
Edd testified that he had received a phone call from Adam's foster parents asking what they could do to keep Adam connected with the tribe. Edd also acknowledged that Adam would remain a full member of the tribe if parental rights were terminated; he would have access to the reservation; and he would be allowed to participate in ceremonies. Edd opined, however, that if Adam were not raised on the reservation, he would miss out on the emotional aspect of his heritage.
Edd further testified that Adam's clan lived in the Mishongovi village, led by a kikmongwi, the village chief. The kikmongwi regulates all the business of the village and clan. Hopi tribal customary adoption is called "n'gwn" and is a process where the "family gathers and decides who can best care for the child if the parent cannot do it." Great-aunt was willing, and the family supported having Adam in her care.
Testimony resumed on October 12, 2011. Edd acknowledged that he had never provided information to the Agency or the foster parents on how to involve Adam in the tribe, although Edd acknowledged receiving multiple calls from Griggs. Edd did not assist Griggs in assessing a relative placement or complete a background assessment of great-aunt. Edd recommended Adam be placed with great-aunt in a tribal customary adoption so that "whatever happens with him is in the best interests for our Hopi tribe."
It took Edd until three months after the denial of the tribe's motion to transfer jurisdiction to complete a home study. In completing the home study, he checked only Hopi tribal records, not Arizona state records. Tribal records showed great-aunt had a misdemeanor conviction for an alcohol offense and there was no requirement in the tribe for treatment. Griggs later testified that when she received the home study from Edd, she immediately sent a relative placement application to great-aunt on August 3, 2011. Great-aunt never responded.
Carmichael testified as an expert in child bonding studies. Carmichael opined that Adam has extraordinary emotional needs and that "disruption in his attachment sets him back months at a time developmentally." She opined that moving Adam to a new placement would be detrimental to his continued growth and development and to his ability to firmly attach and trust his caretakers. Carmichael stated that if Adam were separated from his foster parents and placed with relatives he had not seen since he was one month old, she would expect to see significant separation anxiety, a need for longer periods of sleep, and a withdrawal from adults and other children.
Carmichael opined that the likelihood of Adam forming a meaningful bond with a new caretaker without significant cost to Adam would be very minimal. The cost to Adam would include emotional detriment, regression, and cognitive regression.
After several continuances in an unsuccessful attempt to obtain testimony from a tribal social worker, the continued hearing took place on December 2, 2011. Griggs testified that prior to receiving the home study from Edd, she had never been asked by Edd to consider placement with great-aunt. Griggs had obtained the name of great-aunt from Adam's father in July 2010 and sent it to the tribe; she never heard back from the tribe regarding great-aunt until the home study in August 2011.
Griggs conceded she had not addressed tribal customary adoption in the section 366.26 report. At the request of Michael's counsel, the juvenile court directed an addendum to the section 366.26 report be prepared that addressed tribal customary adoption. The matter was continued to January 12, 2012.
On December 20, 2011, the addendum report was filed. It discussed tribal customary adoption in the Hopi tribe. The addendum stated the tribe opposed allowing the current caretakers to adopt Adam pursuant to Hopi customary tribal adoption. Therefore, the Agency opposed customary tribal adoption. The tribe requested a contested hearing.
On January 12, 2012, Edd testified in more detail about tribal customary adoption in the tribe and with Adam, specifically. Edd acknowledged that under the Hopi laws and traditions, "the exclusive decision" on whether a tribal customary adoption will be allowed rests solely with the village leader. Edd further acknowledged that under the Hopi laws and traditions, the village leader could have been asked "at any stage" of the proceedings to support a tribal customary adoption of Adam by the great-aunt. Edd had not discussed Adam's case with the village leader because "it was our belief we would have been able to transfer this case to the Hopi tribal court."
After argument, the juvenile court made its findings and decision. The juvenile court found (1) active efforts had been made to prevent the breakup of the Indian family, (2) continued custody by either parent was likely to result in serious harm to Adam, (3) current placement did not comply with ICWA, and (4) good cause existed to deviate from ICWA-placement preferences.
The juvenile court identified several factors that supported its finding of good cause, including (1) mother's stated preference that Adam remain in his current placement; (2) Michael's initial statement that he wanted Adam to remain in his current placement; (3) Carmichael's unrefuted testimony that Adam would be impacted negatively by a placement change; (4) great-aunt had no relationship with Adam and had made no attempt to form a relationship with him or even to inquire about Adam's welfare; and (5) the tribe's home study was insufficient under California law to permit placement with great-aunt.
The juvenile court found that termination of parental rights would not interfere with Adam's Hopi enrollment and it would not interfere with his connection to the tribe because he had none. Parental rights were terminated and Adam was referred for adoption.
Michael appeals from the juvenile court's decision terminating his parental rights. The tribe has not appealed.
DISCUSSION
Michael contends (1) the juvenile court erred or abused its discretion in terminating his parental rights in light of the tribe's stated preference for a tribal customary adoption, and (2) substantial evidence did not support the juvenile court's finding that good cause to deviate from ICWA-placement preferences existed. He also challenges the juvenile court's finding under section 361.7 that active efforts were made to prevent the breakup of the Indian family, and therefore he asserts his parental rights should not have been terminated.
I. Termination of Parental Rights
At a section 366.26 hearing, the juvenile court determines a permanent plan of care for a dependent child. (§ 366.26, subd. (b); In re Casey D. (1999) 70 Cal.App.4th 38, 50.) Under section 366.26, subdivision (b)(1), the statutory preference is to terminate parental rights and place the child for adoption. Adoption is the permanent plan preferred by the Legislature. (In re Celine R. (2003) 31 Cal.4th 45, 53.) Where the juvenile court has terminated reunification services, a sufficient basis exists for termination of parental rights unless the juvenile court finds a compelling reason that termination would be detrimental to the child. (In re C.B. (2010) 190 Cal.App.4th 102, 121-122 (C.B.).)
The burden falls to the parent to show that termination of parental rights would be detrimental to the child under one or more of the enumerated exceptions. (In re Fernando M. (2006) 138 Cal.App.4th 529, 534.) The statutory exceptions permit the juvenile court, under exceptional circumstances, to choose a permanent plan other than termination of parental rights and adoption. (C.B., supra, 190 Cal.App.4th at p. 122.) Any application of an exception must be examined on a case-by-case basis. (Id. at p. 124.)
Tribal customary adoption
One exception to termination of parental rights is where a juvenile court finds a compelling reason that termination would be detrimental to an Indian child and not in the best interests of the child because (1) termination would substantially interfere with the child's tribal membership rights or the child's connection to the tribal community, or (2) the child's tribe has identified guardianship, long-term foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child. (§ 366.26, subd. (c)(1)(B)(vi).)
The Legislature amended the dependency statutory scheme, effective July 1, 2010, to authorize tribal customary adoptions. (See §§ 366.24, 366.26.) "'Tribal customary adoption' means adoption by and through the tribal custom, traditions, or law of an Indian child's tribe" and without the requirement of termination of parental rights. (§ 366.24, subd. (a).) The legislative amendments appear to give an Indian child's tribe an election to identify tribal customary adoption as the permanent placement plan for the Indian child, provided certain conditions are met. (§§ 366.24, subd. (c), 366.26, subd. (e)(2).)
Michael first contends the juvenile court erred and/or abused its discretion in terminating his parental rights in that the tribe had identified tribal customary adoption as the planned permanent living arrangement for Adam. The evidence in the record does not support Michael's argument.
Edd testified that tribal customary adoption in the tribe was at the sole discretion of the village leader. Edd had not discussed Adam's case with the village leader at all because "it was our belief that we would have been able to transfer this case to the Hopi tribal court." Edd's testimony was in January 2012, some eight months after the tribe's motion to transfer the case to the Hopi tribal court had been denied in the juvenile court. The tribe never appealed from the juvenile court's ruling.
Section 366.24, subdivision (a) allows a juvenile court to select tribal customary adoption according to custom, tradition, or law of the child's tribe, as the preferred plan for a child. If tribal customary adoption is at the sole discretion of the village leader in the tribe, and the village leader never was contacted about Adam's case, then it follows that there was no determination by the tribe that Adam's placement should be tribal customary adoption. According to Edd's own testimony, he had not made any recommendation to the village leader on the subject.
Edd's failure to raise the issue of tribal customary adoption with the village leader is mystifying. Eight months had elapsed after the tribe's motion to transfer the case to the Hopi tribal court had been denied in the juvenile court. Also, the section 366.26 placement hearing had been continued multiple times, including at least one continuance to specifically address tribal customary adoption. If the exclusive decision on whether a tribal customary adoption is to be permitted rests with the village leader, and the village leader has made no determination on this issue, let alone even been asked, then there cannot have been a tribal determination that Adam's permanent plan should be tribal customary adoption.
The delay by Edd is even more mystifying in light of the provisions of the Hopi Children's Code, which is quite detailed, envisioning prompt hearings in child dependency proceedings and placement decisions that factor in the best interests of the child. (Hopi Children's Code, ch. IV, pt. D.3. [hearing on termination of parental rights is to be set not more than 15 days after the filing of a petition to terminate rights], ch. V, pt. H.9. [disposition order must not be contrary to minor's best interests].) The hearing on termination of Michael's parental rights and establishing a permanent plan for Adam was held months, not days, after the filing of the initial pleading seeking termination of rights. Thus, Edd had ample opportunity to act and seek approval of the tribal leader for a tribal customary adoption well before the juvenile court was scheduled to make a decision.
See <http://www.narf.org/nill/Codes/hopicode/child.htm> [as of Sept. 5, 2012].
The recent decision in In re H.R. (Aug. 20, 2012, A134137) __ Cal.App.4th __ (H.R.) addressed tribal customary adoptions and is helpful to our analysis. The actions of the Yurok Tribe in that case are in stark contrast to the actions of the Hopi Tribe here. There, the Yurok Tribe formally intervened less than one month after the dependency petition was filed. (Id. at p. _ [2012 Cal.App. Lexis 897, p. *2].) The Yurok Tribe shortly thereafter determined that tribal customary adoption would be the preferred placement option. The Yurok Tribe and the child's custodial grandparents entered into an agreement for a tribal customary adoption. (Id. at p. __ [2012 Cal.App. Lexis 897, p. *5].) The Yurok Tribe, as required by section 366.24, subdivision (c)(6), filed with the juvenile court a tribal customary adoption order issued by the tribal court evidencing that a tribal customary adoption process had been completed by the Yurok Tribe. (H.R., at p. __ [2012 Cal.App. Lexis 897, p. *6].)
As discussed above, the Hopi Tribe here did not intervene in a timely fashion, did not identify a tribal customary adoption as the preferred plan, and did not issue an order from the tribal court indicating that a tribal customary adoption process had been completed by the tribe.
There, the grandparents subsequently changed their minds about agreeing to a tribal customary adoption, contending the tribal order went beyond the scope of their agreement. (H.R., supra, __ Cal.App.4th at p. ___ [2012 Cal.App. Lexis 897, p. *7].) The juvenile court ordered a permanent placement of traditional adoption and termination of parental rights, opining that "there would be no meaningful difference for the minor under either form of adoption" and "that under these circumstances the statute compelled the court to order traditional adoption and terminate parental rights." (Id. at p. __ [2012 Cal.App. Lexis 897, p. *8].)
In reversing the juvenile court's placement decision, the appellate court noted that section 366.26, subdivision (e)(2) provides in relevant part: "'In the case of an Indian child, if the Indian child's tribe has elected a permanent plan of tribal customary adoption, the court upon receiving the tribal customary adoption order will afford the tribal customary adoption order full faith and credit ...." (H.R., supra, __ Cal.App.4th __ at p. __ [2012 Cal.App. Lexis 897, pp. *25-*26].) "The requirement that the court afford the tribal customary adoption order full faith and credit does not place a restriction on the court's discretion to select the most appropriate permanent plan." (Id. at p. ___ [2012 Cal.App. Lexis 897, p. *26].)
An essential part of any tribal customary adoption is a valid tribal customary adoption order, issued by a federally recognized tribe, which can be given full faith and credit if the juvenile court selects tribal customary adoption as the permanent plan. (H.R., supra, ___ Cal.App.4th at p. __ [2012 Cal.App. Lexis 897, p. *29].) If a juvenile court finds that tribal customary adoption would be detrimental to the minor, it should not be selected as the child's placement. (Id. at pp. __, __ [2012 Cal.App. Lexis 897, pp. *32, *34].)
In the H.R. case, unlike here, the juvenile court found that traditional adoption and tribal customary adoption would not "'make one speck of difference'" and ordered traditional adoption as the "default" selection. (H.R., supra, __ Cal.App.4th at pp. __, ___ [2012 Cal.App. Lexis 897, pp. *32-*33].) The correct action would have been to make the tribal customary adoption the "default" selection. The juvenile court in the H.R. case, while correctly concluding it still retained discretion in the selection of a permanent plan for the minor, incorrectly concluded that traditional adoption, instead of tribal customary adoption, was the preferred plan in the absence of detriment to the minor. (Id. at p. __ [2012 Cal.App. Lexis 897, p. *33].)
Here, as there was no valid decision by the tribe to allow tribal customary adoption of Adam, Michael has failed to meet his burden of establishing an exception to termination of parental rights and his contention fails. (C.B., supra, 190 Cal.App.4th at p. 133.)
Active efforts finding
Michael's second challenge to termination of his parental rights is that the finding that active efforts had been made to avoid the breakup of the Indian family pursuant to section 361.7 was not supported by substantial evidence.
A party seeking termination of parental rights of an Indian child must provide evidence that there were active efforts to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and those efforts were unsuccessful. (§ 361.7, subd. (a).) This is in addition to the requirement for qualified expert witness testimony that custody of the Indian child by the parent is likely to result in serious emotional or physical damage to the child. (§ 224.6, subd. (b)(1).)
ICWA and California law both require the juvenile court to find that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts proved unsuccessful. (25 U.S.C. § 1912(d); Welf. & Inst. Code, § 361.7, subd. (a).) "Historically, courts in California have interpreted the active-efforts finding as 'essentially undifferentiable' from a reasonable-reunification-services finding. [Citation.] 'The phrase "active efforts," construed with common sense and syntax [citation], seems only to require that timely and affirmative steps be taken to accomplish the goal which Congress has set: to avoid the breakup of Indian families whenever possible by providing services designed to remedy problems which might lead to severance of the parent-child relationship.' [Citation.]" (In re A.A. (2008) 167 Cal.App.4th 1292, 1317-1318.)
Whether the services provided constitute active efforts within the meaning of section 361.7 is a question of law which we decide independently. (In re K.B. (2009) 173 Cal.App.4th 1275, 1286 (K.B.).)
As we noted in our first opinion, Adam's mother had been receiving voluntary services at the time then 11-month-old Adam was removed from her custody and a section 300 petition filed; Adam's father was incarcerated. (Adam L., supra, F062458.) Both of Adam's parents had a history of substance abuse, had failed treatment, and had lengthy criminal records. (Ibid.)
At a progress review hearing, the Agency noted that Michael was incarcerated and Adam's mother was in an inpatient drug treatment facility. The juvenile court granted the Agency discretion to allow Adam overnight visits with his mother if she was in a clean and sober living facility.
Reunification services were provided to both parents. At the six-month review hearing, however, neither parent was in compliance with the reunification plan. Adam's mother had had several overnight visits with Adam and she had been in two separate treatment programs in a span of approximately 45 days; Michael was still incarcerated. Despite the noncompliance, the Agency recommended further reunification services be provided for another six months. (Adam L., supra, F062458.) In March 2010, the parties stipulated to another six months of services. (Ibid.)
Adam's parents received 12 months of reunification services when the norm for a child of Adam's age was six months. After 12 months of services, Adam's parents were not in compliance with the reunification plan and the Agency moved to terminate services. (Adam L., supra, F062458.)
As the Agency's files noted, mother was provided substance abuse treatment and parenting classes; she failed to make progress. Michael also was provided substance abuse treatment and parenting classes; he also failed to make progress. Michael's progress was impeded, in part, by his repeated criminal activity and incarcerations -- an impediment of his own making.
Voluntary services were provided to mother prior to the filing of the section 300 petition. After the filing of the petition, reunification services were provided to both parents to address the underlying reasons for the filing of the section 300 petition. Neither parent made progress toward conquering his or her substance abuse, improving his or her parenting skills, and reuniting with Adam, despite receiving services for a period of one year.
As for Michael's claim that "active efforts" includes efforts to secure tribal membership for the child and using available tribal resources and extended family for foster care or other placement, this was done. The Agency provided all requested information to the tribe, including Adam's birth certificate, so that he could be enrolled. (Adam L., supra, F062458.) The Agency also attempted to place Adam with family members. Michael's family never asked for Adam to be placed with them; great-aunt did not respond when the Agency sent information to her as a preliminary to placing Adam with her. Initially, neither the tribe nor Michael objected to Adam's continued placement with his foster parents. (Ibid.)
The ICWA expert, Mai, testified that the Agency had engaged in active efforts to prevent the breakup of the Indian family.
We conclude the services provided constituted active efforts by the Agency within the meaning of section 361.7 to prevent the breakup of the Indian family.(K.B., supra, 173 Cal.App.4th at p. 1286.)
II. Substantial Evidence
Michael contends the juvenile court's factual findings that good cause existed to deviate from the ICWA-placement preferences were not supported by substantial evidence. We disagree.
Definition of "good cause"
In any foster care, preadoptive or adoptive placement of an Indian child, courts shall give preference, "in the absence of good cause to the contrary," to a placement first and foremost with a member of the child's extended family. (25 U.S.C. § 1915(a), (b)(i).) ICWA, however, does not define the phrase "good cause." Indeed, it neither expressly nor impliedly restricts a court in its good cause evaluation. Rather, ICWA provides state courts with flexibility in determining the placement of an Indian child. (Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 632, 641-643 (Fresno County DCFS).)
The issue in Fresno County DCFS was whether ICWA recognized only limited criteria, set forth in federal guidelines, for a good cause determination. (Fresno County DCFS, supra, 122 Cal.App.4th at pp. 641-643.) The federal guidelines at issue then and now state:
"(a) For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference set out above shall be based on one or more of the following considerations: [¶] (i) The request of the biological parents or the child when the child is of sufficient age. [¶] (ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness. [¶] (iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria." (Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67594, F.3(a) (Nov. 26, 1979) (hereafter Guidelines).)
This court disagreed with the premise that the juvenile court had to find good cause as to the Indian child within the limited considerations set by the Guidelines. We held the Guidelines do not restrict a juvenile court's good cause determination to the three considerations contained in section F.3. (Fresno County DCFS, supra, 122 Cal.App.4th at p. 643.)
As we explained, the Guidelines, by definition, are not binding on the courts. (Fresno County DCFS, supra, 122 Cal.App.4th at pp. 642-643.) Their significance is important, but not controlling. (Id. at p. 643.) The Guidelines explicitly state the courts have the primary responsibility for interpreting the term "good cause." (Fresno County DCFS, at p. 643); Guidelines, 44 Fed.Reg. 67584.)
In California, the nonrestrictive nature of the Guidelines on good cause is reflected in our California Rules of Court. California Rules of Court, rule 5.484(b) sets forth the identical considerations as the Guidelines for a good cause determination but does not restrict the juvenile court only to those three considerations. Instead, the rule provides "The court may deviate from the preference order only for good cause, which may include the following considerations: ...." (Cal. Rules of Court, rule 5.484(b)(2)(A)-(D).)
In reviewing a juvenile court decision finding good cause to deviate from the ICWA-placement preferences, we apply a substantial evidence standard of review. (Fresno County DCFS, supra, 122 Cal.App.4th at p. 645.)
Analysis
In this case, the Agency placed Adam with the foster parents as an emergency placement after detention. Two months later Adam was moved to an ICWA-compliant foster home. After about one month in that home, he was placed with his maternal grandmother. After one day, the grandmother asked that Adam be removed from her home. After removal from the grandmother's home, Adam again was placed with the foster parents. The Agency informed the tribe's social worker, Maude Yoyhoeoma, of these moves and at that time, in December 2009, Yoyhoeoma told the Agency to leave Adam in the current placement with the foster parents while the tribe weighed whether to intervene.
In July 2010, the Agency contacted the tribe seeking information on great-aunt as a possible ICWA-compliant placement for Adam after receiving great-aunt's name from Michael. According to Edd, the tribe did not respond or provide any information to the Agency regarding great-aunt. It was not until August 2011 that the Agency had contact information for great-aunt and mailed a relative placement packet to her; great-aunt never responded.
In March 2011, the tribe first indicated an intent to seek a change of Adam's placement. During the March 21, 2011, hearing, the tribe's attorney stated that if the tribe's motion to transfer jurisdiction was granted, the tribe would seek a relative placement. The tribe, however, was not requesting a placement change at that time.
The record discloses that neither the tribe nor Michael ever filed a section 388 motion seeking to change Adam's placement. Consequently, Adam remained in the home of the people who became his foster parents for a continuous period from around December 2009 until the continued section 366.26 hearing in January 2012.
Michael now posits that because the tribe put forth great-aunt as a possible placement home in January 2012 at the continued section 366.26 hearing, there was no good cause to deviate from the ICWA preferences for an Indian child. This misses the point. Juvenile courts are allowed to deviate from ICWA-placement preferences when placing an Indian child, even when an ICWA-compliant home may be available. (25 U.S.C. § 1915(a), (b).)
Here, Michael initially agreed Adam should remain with and be adopted by the foster parents. Adam's mother continually expressed a preference that Adam remain with his foster parents and that they be allowed to adopt Adam. The Guidelines specifically provide that a parent's request is a basis for finding good cause to deviate from placement preferences with an Indian child. (Guidelines, 44 Fed.Reg. 67584.) Although Michael subsequently changed his mind regarding a preference for Adam's placement when he learned that he could avoid termination of his rights, Adam's mother specifically requested that Adam remain with his foster parents.
Carmichael, the child psychologist who testified as an expert in the case, opined that Adam had extraordinary emotional needs due to his early neglect and had developed a nonresponsive effect. Adam was progressing emotionally and developmentally with his foster parents, and Carmichael voiced the opinion that a new placement would come at a high cost to Adam, including a detrimental effect on his continued growth and development and ability to form an attachment with his caretakers. The extraordinary emotional needs of the Indian child, as testified to by an expert witness, also is a ground for deviation from the ICWA-placement preferences. (Guidelines, 44 Fed.Reg. 67584.)
The above evidence alone constitutes substantial evidence supporting a deviation from the ICWA-placement preferences. (Fresno County DCFS, supra, 122 Cal.App.4th at pp. 645-646.)
Additionally, Adam has been the subject of a dependency proceeding since July 2009. The tribe received notice of the proceedings on August 11, 2009, and no member of Michael's family or the tribe stepped forward to seek placement of Adam, or even inquired about Adam's welfare, for two years. There was a failure by the tribe to cooperate with the Agency in that there was no response to the Agency's inquiry for information in order to place Adam with a member of the tribe.
"Once reunification services are ordered terminated, the focus shifts to the needs of the child for permanency and stability." (In re Marilyn H. (1993) 5 Cal.4th 295, 309.) A section 366.26 hearing "is a hearing specifically designed to select and implement a permanent plan for the child." (Marilyn H., at p. 304.) It is designed to protect a child's "compelling rights ... to have a placement that is stable, permanent, and that allows the caretaker to make a full emotional commitment to the child." (Id. at p. 306.)
The placement with great-aunt that Michael suggests should have been the choice of the juvenile court was uncertain. Great-aunt failed to respond to the Agency's inquiry regarding a possible relative placement in her home. As noted in part I above, there had been no determination by the tribe that a tribal customary adoption with great-aunt would be allowed. Edd testified that only the village leader could make that decision. Yet, Edd never spoke with the village leader about Adam to make the request for approval.
This court does not reweigh the evidence, all conflicts must be resolved in favor of upholding the findings, and all legitimate inferences to uphold the juvenile court's findings must be made. Applying this standard, there was abundant and substantial evidence supporting the juvenile court's findings that good cause existed to deviate from the ICWA-placement preferences. (Fresno County DCFS, supra, 122 Cal.App.4th at pp. 645-646.)
CONCLUSION
What is missing in this record is any indication by personnel from the tribe that they cared about what was best for Adam. They did not respond in a timely fashion, if at all, to any requests by the Agency or the juvenile court for action or information. They never made any effort to include Adam in tribal activities and rebuffed a number of attempts to gain information on such activities. They never expressed any concern about what effect transferring Adam to a total stranger would have on him after he had spent most of his life, more than two years, with his foster parents. Great-aunt never asked or attempted to visit with Adam or contact him. The only conclusion that can be drawn from Edd's testimony is that the tribe wanted nothing to do with the dependency system in California. Finally, the tribe did not appeal from the juvenile court's decision.
DISPOSITION
The January 24, 2012, order terminating parental rights is affirmed.
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CORNELL, Acting P.J.
WE CONCUR: ______________
GOMES, J.
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FRANSON, J.