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In re T. S.

July 14, 2009


APPEAL from a judgment of the Superior Court of Sacramento County, Scott P. Harman, Judge. Affirmed. (Super. Ct. No. JD223652).

The opinion of the court was delivered by: Sims, Acting P. J.


Appellant, the father of the minor, appeals from the juvenile court‟s order terminating parental rights. (Welf. & Inst. Code, §§ 366.26, 395.)*fn2

Appellant claims that a statutory exception to adoption applied because the minor‟s Indian tribe had identified guardianship as the permanent plan for the minor. (§ 366.26, subd. (c)(1)(B)(vi)(II).) In the published portion of the opinion, we reject this contention.

Appellant also claims his trial attorney rendered ineffective assistance of counsel because she did not argue that another exception to adoption applied based on substantial interference with the minor‟s connection to his tribal community. (§ 366.26, subd. (c)(1)(B)(vi)(I).) In addition, appellant maintains he received ineffective assistance of counsel because his attorney failed to argue that the Department was required to seek a criminal conviction exemption for relatives selected by the minor‟s tribe to be guardians for the minor.

In the unpublished portion of the opinion, we reject appellant‟s claims of ineffective assistance of counsel. We therefore affirm the order terminating parental rights.


A dependency petition was filed in Shasta County in August 2005 concerning the two-day-old minor, alleging the minor‟s mother tested positive for methamphetamine when the minor was born and admitted intravenous drug use on one occasion during her pregnancy. It also was alleged that appellant admitted past drug use and had a conviction for public intoxication. The petition further alleged the parents‟ home was cluttered, they did not have the items necessary to care for the minor, and they did not consistently demonstrate proper care of the minor while he was still in the hospital.

The minor‟s mother had Indian heritage through the Pit River Tribe (the Tribe), and prior to the jurisdictional hearing, the Tribe filed a Notice of Intervention, informing the court that the minor is an Indian child and the Tribe was appearing in the proceedings.

The allegations in the petition were sustained. Prior to the dispositional hearing, the matter was transferred to Sacramento County. In January 2006, a representative of the Tribe appeared at the transfer-in hearing and, in accordance with her recommendation, the minor was placed with the parents.*fn3

At the dispositional hearing in April 2006, the parents were ordered to comply with the case plan recommended by the Sacramento County Department of Health and Human Services (the Department).

By the time of the review hearing in October 2006, appellant was no longer living with the minor and the minor‟s mother, and he had decided he did not want to participate in further reunification services. At the review hearing, the juvenile court ordered that the minor remain in the mother‟s care and terminated appellant‟s services.

In July 2007, a supplemental petition was filed based on the mother‟s continued noncompliance with substance abuse treatment and her failure to take the minor to scheduled monthly check-ups, and because she allowed appellant to have unauthorized contact with the minor. The minor was placed in a foster home, and the social worker recommended the mother‟s services be terminated.

Meanwhile, the Tribe was in the process of passing a resolution for placement of the minor in the home of maternal cousins who were active members of the Tribe, although they did not have an established relationship with the minor. Although the social worker had concluded that the minor was adoptable and the maternal cousins were willing to adopt, the Tribe did not agree with a permanent plan of adoption, believing "[g]uardianship [wa]s the more appropriate permanent plan to avoid severing the parental rights of both parents." The Tribe wanted the minor placed in a guardianship with relatives.

An evaluation by an Indian Child Welfare Act (ICWA) expert concluded that active efforts had been made to provide remedial and rehabilitative services to the family and that the minor would suffer serious emotional or physical damage if returned to parental care. However, the expert felt it was in the family‟s best interest to reunify as an Indian family, and she recommended guardianship as the permanent plan. She explained: "It is not unknown among Indian nations to allow their members who are struggling to achieve resolution to adverse circumstances every possible opportunity to succeed. In this case [the mother] has struggled to be successful in recovery, and is committed to continuing to pursue sobriety. In order to allow her future opportunities to reunify her family, the plan of long-term guardian[]ship is recommended. From a tribal perspective, it is in the family‟s best interest to reunify as an Indian family. Adoption would potentially remove the possibility that the child and his parent(s) could reunify as a family."

The juvenile court sustained the allegations in the supplemental petition. While the dispositional hearing was pending, an assessment for placement of the minor with the maternal cousins was commenced. The cousins had assumed guardianship of three other children and, reportedly, "there ha[d] been no concerns regarding their ability to care for the children in their home."

However, both cousins had criminal histories, which would require an exemption through "the Kinship Unit."

The husband‟s criminal record included misdemeanor convictions between 1991 and 1996 for possession of a controlled substance (Health & Saf. Code, § 11377, subd. (a)), possession of a dangerous weapon (§ 12020, subd. (a)), being under the influence of a controlled substance (Health & Saf. Code, § 11550, subd. (a)), petty theft (§ 484, subd. (a)); carrying a firearm in a vehicle (§ 12034, subd. (a)), receiving stolen property (§ 496, subd. (a)), two counts of corporal injury on a spouse or cohabitant (§ 273.5, subd. (a)), and battery (§ 242), as well as a 2000 violation for assault with a deadly weapon (§ 245, subd. (a)(1)) which, according to the social worker‟s report, was "[l]ikely" a felony conviction.

The wife‟s criminal record contained misdemeanor convictions in 2001 for tampering with a vehicle (Veh. Code, § 10852) and driving without a valid license. (Veh. Code, § 12500, subd. (a).) Nonetheless, the social worker recommended that the minor be placed in the cousins‟ home upon receipt of ...

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