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Pit River Tribe v. the Superior Court of Sacramento County

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)


September 14, 2011

PIT RIVER TRIBE, PETITIONER,
v.
THE SUPERIOR COURT OF SACRAMENTO COUNTY, RESPONDENT; SACRAMENTO COUNTY DEPARTMENT OF HEALTH AND HUMAN SERVICES ET AL., REAL PARTIES IN INTEREST.

(Super. Ct. No. JD223652)

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

Pit River Tribe v. Super. Ct.

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Petitioner Pit River Tribe (the Tribe) seeks an extraordinary writ to vacate the order of the juvenile court at a postpermanency planning hearing (Welf. & Inst Code, § 366.28),*fn1 at which it found good cause to deviate from the placement preferences set forth in the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) The Tribe contends the good cause finding was in error because there was a failure to comply with the ICWA's notice and placement requirements. Because the social services agency failed to use the services of the Tribe to secure a placement conforming to the ICWA placement preferences, failed to expeditiously evaluate the relatives recommended by the Tribe for placement, failed to assist in obtaining a criminal record exemption or adequately explain why it did not do so for one of the ICWA-compliant placement options, and failed to apply the Tribe's social and cultural standards when assessing the relative's home, we are compelled to agree.

FACTUAL AND PROCEDURAL BACKGROUND

A dependency petition was filed in Shasta County in August 2005 concerning two-day-old T.S. (the minor), based primarily on the parents' substance abuse. The minor's mother has Indian heritage through the Tribe, which determined the minor was an Indian child and intervened in the proceedings. The matter eventually was transferred to Sacramento County, where the parents' services were terminated due to noncompliance with their case plans, and a section 366.26 hearing was set to select and implement a permanent plan for the minor.

The Tribe passed a resolution establishing placement with the mother's cousins as "the first order of placement preference" for the minor. However, placement with these relatives was not approved because of their criminal history. Another maternal relative -- Jennifer A. -- was assessed for placement and also was denied approval because of her criminal history.

At the section 366.26 hearing in July 2008, an adoption social worker testified that the minor was generally adoptable and that an Indian foster family agency had identified a placement for the minor in which one of the foster parents was a member of the Tribe. She maintained she would be able to find another Indian family to adopt the minor if this particular family was not willing to do so. The Tribe continued to support a permanent plan of guardianship, with placement of the minor in the home of the maternal cousins.

Concluding it retained discretion to find adoption in a child's best interests even when a tribe identifies guardianship or long-term foster care as the preferred permanent plan, the juvenile court ordered a permanent plan of adoption and terminated parental rights. The father appealed the juvenile court's orders, which we affirmed. (In re T.S. (2009) 175 Cal.App.4th 1031.)

The day after the hearing, the minor was placed through the Tribal Economics and Social Solutions Agency (TESSA) with a prospective adoptive family. However, TESSA decertified the home the following year as a result of concerns about the care the minor was receiving. In June 2009 the minor was placed in a home with an approved adoption home study, in which one parent was a member of the Tribe. Although this family, too, initially avowed a commitment to adopting the minor, by mid-December 2009 the family had changed its mind. At this point, the minor, now four and one-half years old, was evincing behavioral difficulties such as lying, being defiant, throwing tantrums, urinating and defecating on himself, refusing to eat, drinking water excessively, and experiencing sleep disturbances. The minor had exhibited these types of behaviors in his previous placement, only not as severely.

In its report for the review hearing in December 2009, the Sacramento County Department of Health and Human Services (the Department) disclosed that it had not identified another adoptive home for the minor, although a potential family was being evaluated. The Department anticipated the minor would transition into a new home within two months.

Notice of the December 2009 review hearing was sent to the Tribe.*fn2 However, the notice indicated that the social worker was not recommending a change in placement. Additionally, the Tribe was not provided the Department's report for the hearing, which contained information about the need to find a new placement for the minor. Although the social worker for the Department, Colleen Gonzalez, tried to contact the Tribe by telephone while attempting to find a placement for the minor, she was unable to reach anyone or leave a message. The Department did not attempt to contact the Tribe by letter or any other means regarding the impending placement change.

The Tribe did not appear at the review hearing, which occurred on December 22, 2009. The juvenile court continued the matter two months for a report "regarding the progress in finding an adoptive home." A copy of the minute order from this hearing was sent to the Tribe.

The minor was placed in a new prospective adoptive home on January 8, 2010. The home had an approved adoption home study, but neither parent was Native American.

The Tribe's representative, Susan Alvarez, appeared at the next hearing, which took place in late February 2010, and informed the court that the Tribe had not received timely notice of the minor's most recent placement change. Alvarez submitted a tribal resolution for placement of the minor with Mary M., the minor's maternal aunt, and the court ordered Alvarez to provide a copy of the resolution to the other parties.*fn3 The matter was continued to June 2010.

According to the Department's report for the June hearing, the minor had established a strong bond with the new adoptive family, and his previous behavioral problems were no longer a concern.

At the hearing in June 2010, tribal representative Alvarez stated that when she contacted social worker Gonzalez about assessing Mary M., Gonzalez responded that she was not required to assess the Tribe's preference for placement because the minor was in a preadoptive home. According to Alvarez, Gonzalez also informed Mary M. that the Department would not be assessing her home for this reason. The attorney for the Department reiterated this position, maintaining that, as the minor already had been placed in the prospective adoptive home when the Tribe's resolution for placement was filed, there was no basis to remove the minor from that home in the absence of "some sort of a motion . . . ." The minor's attorney also objected to consideration being given to moving the minor to the home of a relative, maintaining that the Tribe chose to absent itself from the previous hearing and had waited too long to assert a placement preference. The juvenile court expressed that the Department was "thwarting the Court's ability to make the kind of weighing that the Court is supposed to make" by not "assessing this person and at least giving a position." The court continued the review hearing for the parties to brief the issue.

At the following hearing in July 2010, the attorney for the Tribe requested an assessment of Mary M.'s home and an evidentiary hearing as to whether there was good cause to deviate from the ICWA's placement preferences. The court took these issues under submission.

At a hearing a week later, the court found a lack of evidence that the Department made a diligent effort to identify a family meeting the ICWA's placement preferences prior to placing the minor in his current home. The court noted that "[a]n attempt to telephone the [T]ribe and finding that a voice-mail is full is not the kind of notice to the [T]ribe that is required for the Department to enlist the [T]ribe's services to meet the requisite preferences . . . ." The court found unpersuasive the Department's reliance on the absence of an order (presumably, to assess placement with Mary M.) at the hearing in February 2010 and rejected the Department's argument that it had discretion to select an adoptive placement, concluding that discretion is limited when placing an Indian child. The court ordered a placement assessment of Mary M. and set the matter for an evidentiary hearing on whether there was good cause to deviate from the ICWA's placement preferences.

In August 2010 it was disclosed that Mary M. was no longer interested in having the minor placed with her. The Tribe requested a reassessment of Jennifer A., who had not passed the assessment process previously because of a 1995 misdemeanor conviction for infliction of corporal injury upon a spouse. Jennifer A. had visited the minor throughout the dependency proceedings, except for a period beginning in 2009 when the Department discontinued visits in an effort to maintain the minor's placement. Jennifer A. contacted the social worker during this time about reinstating visits. The court confirmed the evidentiary hearing to clarify the reasons why Jennifer A. previously was found unsuitable for placement.

A few days later, the Tribe filed a formal request for assessment of Jennifer A., stating it would seek an exemption from the State Department of Social Services regarding her criminal record.

At a hearing in September 2010 social worker Gonzalez testified that although she had been unsuccessful in contacting the Tribe while investigating a new placement for the minor, she looked for an Indian family on the adoption agency list of certified adoptive homes, and the Department called other agencies in this regard. She explained she did not consider placing the minor with a family through TESSA, because these families, while "potentially . . . interested in adoption," did not have completed home studies, which she felt was necessary to avoid further delays in permanency for the minor. At a later hearing, Gonzalez explained she also was looking for a family that could meet the minor's special needs in terms of his behavioral problems.

Tribal representative Alvarez testified she found out the minor had been moved when Jennifer A. called her in January 2010 to inform her of the placement change. She acknowledged that, other than contacting the child's family, the Tribe had no services for finding placements.

The Department and the minor's attorney maintained the Tribe knew in advance that the minor was going to have to be moved but waited until after the placement change to come forward with an ICWA-compliant placement. The Department's attorney noted that the placements previously identified by the Tribe had all been "inappropriate in some way." The Department also maintained that Jennifer A. "would not have been available to be assessed" at the time of the minor's placement change.

The juvenile court again found the Tribe was not properly noticed that the Department was seeking a new placement for the minor and that, once the Tribe learned of the change of placement, it came before the court at the earliest opportunity and requested placement with a tribal family member. The court also found the Tribe delayed this process by not providing information to the Department and the minor's attorney in a timely manner about the proposed family member, and when the information was provided, this person was no longer interested in placement. The court ordered the Department to perform an updated placement assessment of Jennifer A.

At the next hearing more than five weeks later, the Tribe complained that the Department still had not done a home study on Jennifer A. and had neither sought an exemption regarding her criminal record nor offered an explanation as to why this had not been done. The Department claimed that Jennifer A.'s home could not "pass kinship" based on "the size and condition of her home and criminal history." The Department's attorney maintained that the problems in the "design of the household" were not waivable, rendering it pointless to pursue a criminal records exemption. The Tribe's attorney questioned whether the Department had taken into account the standards and customs of the Tribe when evaluating the home. The court continued the matter for the preparation of a written report.

According to the subsequent report, Jennifer A.'s home did not pass a "[k]inship assessment" because the minor would have to share a bedroom with a seven-year-old female and the home had inadequate space, in violation of state foster family regulations. Although Jennifer A. and her husband were in the process of purchasing a larger home, it was unclear when the new home could be assessed due to "extremely high caseload volumes." The report also noted Jennifer A.'s and her husband's misdemeanor convictions, which would require them to go through the exemption process. Social worker Gonzalez estimated it would take two to six months for Jennifer A. and her husband to be approved by "[k]inship," and another six months of the minor's living in the home before adoption could take place. Gonzalez felt this delay in permanency would not be in the minor's best interest. She also expressed concerns that Jennifer A. and her husband did not understand the minor's special needs or have the ability to address the behavioral issues that might arise.

In November 2010 a request for a criminal records exemption submitted by TESSA on Jennifer A.'s behalf for foster home licensing was denied by the Department of Social Services Caregiver Background Check Bureau. However, the Tribe reported that it had submitted its own request for exemption specifically based on placement of the minor with Jennifer A.

A contested placement hearing began in December 2010 and continued over the ensuing three months. Sharon Pegues -- a social worker with the kinship unit who most recently assessed Jennifer A. and had performed a prior assessment of her -- testified that a person with a violent misdemeanor conviction is not eligible for an exemption until 15 years after the expiration of probation. She maintained that as Jennifer A. had a conviction in June 1995 for misdemeanor spousal infliction of corporal injury upon a spouse and her husband had one violent and one nonviolent misdemeanor, they were not eligible for exemptions until July 2010.*fn4

When Pegues determined that Jennifer A.'s home could not be approved because of space issues, she was directed by the Department to close the assessment referral. Consequently, she did not do a thorough inspection of the home or complete the process of requesting criminal records exemptions. However, from what Pegues had seen, the family had "the potential for kinship approval."

Pegues testified that home inspections for Indian children were completed by the child's tribe. She explained that she was not provided any documentation indicating the minor was an Indian child. She acknowledged that she was not familiar with the Tribe's social and cultural standards and did not apply such standards when assessing Jennifer A.'s home.

The supervisor of the kinship unit testified that, when a home has been certified by a tribe, the kinship unit was responsible only for the criminal and child protective services background checks. If a home was not presented as a "certified ICWA home" by a tribe, it was treated as a standard relative placement assessment, and the standards applied were no different than any relative placement evaluation.

Social worker Gonzalez testified that the minor was no longer displaying any of the problems from his previous placement and seemed to be very comfortable in his current home. Due to the minor's multiple placement changes and his adjustment in his current placement, Gonzalez did not feel it would be in his best interest to be moved to another home. In addition, Gonzalez had been "unable to truly assess [Jennifer A. and her husband's] parenting style, [and] if they would be able to meet [the minor's] needs now and in the future." Gonzalez had also heard from a family member that Jennifer A. had allowed the minor's mother to have unauthorized contact with the minor during previous visits.

Enedelia Lopez, a social worker with the agency that placed the minor in his last two prospective adoptive homes, testified that the minor previously exhibited a two-year delay emotionally but no longer suffered from emotional delays. Lopez felt it would be detrimental to remove the minor from his current caretakers because the minor appeared to have bonded to the family and multiple placement changes generally tended to create "attachment challenges." Lopez acknowledged that the minor appeared comfortable with Jennifer A.'s family during visits.

Tribal representative Alvarez testified that there were no certified tribal homes available for placement, nor had there been at the time of the minor's placement change. When asked if there were any other Indian families available for adoptive placement when the minor was moved, Alvarez responded that she had spoken to TESSA and they had families interested in adoption. Although the Tribe had not yet passed a resolution for placement with Jennifer A., it was the Tribe's position that the minor should be placed with Jennifer A. and her husband. The Tribe had asked the state for a criminal records exemption for Jennifer A.

Jennifer A. testified that she and her husband had adopted another child, the home study for which was completed in July or August 2010. In December 2010 the family moved into a four-bedroom house.

Jennifer A. acknowledged that her husband and she had a history of domestic violence, and that she had completed a domestic violence program but her husband had not. As recently as 2009, Jennifer A.'s husband had been drinking and got into a fight with a neighbor. Jennifer A. also admitted she had used cocaine in the past but not for the preceding seven years. She also no longer drank alcohol.

Jennifer A. initially testified that when she was having unsupervised visits with the minor, the mother showed up at her house but the minor was not there. She then admitted that she had allowed the mother to take the minor to a park with the grandmother.

Following the close of evidence, but prior to the juvenile court's ruling, the Tribe moved to reopen its case to present evidence that Jennifer A. had been granted a conditional exemption by the State Department of Social Services for placement of the minor with her. A letter attached to the motion as an exhibit stated that Jennifer A.'s husband had already been granted an exemption.

During closing arguments, the Tribe's attorney pointed out that, with regard to Jennifer A.'s criminal conviction, "non-completion of the 15-year waiting period [created] a rebuttable presumption of ineligibility [for an exemption], not an absolute prohibition."

In March 2011 the juvenile court issued its written ruling. The court noted that the only placement option offered by the Tribe was Jennifer A., who, prior to being granted an exemption, was not eligible for placement due to her "prior violent felony convictions."*fn5 The court observed that the Department's failure to assist Jennifer A. in obtaining an exemption was not based on an "independent assessment that [she] would not qualify because she would not be able to present compelling evidence of rehabilitation" but, instead, on "a cursory assessment that the foster care licensing 'guidelines' require a minimum waiting period of 15 years following the completion of probation before seeking an exemption." However, the court also observed that neither the Tribe nor Jennifer A. herself had attempted to compile and present evidence of her rehabilitation until the recent exemption request.

The court commented that the minor had endured a number of placement changes since birth and, "not surprisingly," had developed behavioral issues, leading to the termination of his second prospective adoptive placement in an Indian home. The court observed that the minor had "never done better" than he was doing in the home of his current caretakers, with whom he had established a strong bond and who were willing to facilitate his connection to the Tribe. Based on the minor's "dramatic improvement" in this home, the court found it was clear that the caretakers "possess the requisite parenting skills necessary to assist the [minor] with his various needs."

With regard to the notice issue, the court found that despite the inadequacy of notice to the Tribe of the minor's pending placement change, the Tribe received actual notice from Jennifer A. that the placement "was changing" and appeared in the matter "just weeks after the [minor] was placed," requesting placement with Mary M. Thus, the court concluded the Tribe was not harmed by the lack of proper notice and denied its request to invalidate the proceedings.

Finally, the court found good cause existed to deviate from the ICWA placement preferences. The court observed that the preferred caretaker initially identified by the Tribe (Mary M.) informed the Department after six months that she was no longer interested in placement, and thereafter it took the Tribe several months to assist Jennifer A. in obtaining a criminal records exemption, which was a prerequisite to placing the minor with her. The court noted that, even if the Department had assisted Jennifer A. in requesting an exemption, the minor already would have been in his current placement for six months plus the additional time necessary to process the exemption request. The court concluded: "The Tribe came forward with a Resolution indicating a culturally appropriate placement they were requesting for the child. This is not the placement they argue for today due to the reluctance of that party to follow through. Unfortunately, that has been the story of [the minor's] life. Until he was placed with his current [prospective adoptive parents], no one was ever there to follow through for him. . . . [T]his case is about [the minor], about his trials and tribulation, about his tribal heritage, and about his current love for his [prospective adoptive parents]." Consequently, the court ordered continued placement with the prospective adoptive parents.

DISCUSSION

I Introduction

"Based on findings that Indian children are a vital resource to the continued existence and integrity of Indian tribes and that the states, when exercising their jurisdiction over Indian child custody proceedings, 'have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families,' Congress enacted the ICWA to 'protect the best interests of Indian children and to promote the stability and security of Indian tribes and families . . . .' [Citations.] In enacting the ICWA, Congress intended to establish standards for removal and placement of Indian children which would 'reflect the unique values of Indian culture . . . .' [Citation.]" (In re Jullian B. (2000) 82 Cal.App.4th 1337, 1344 (Jullian B.); see 25 U.S.C. § 1902.) "The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (In re Desiree F. (2000) 83 Cal.App.4th 460, 469 (Desiree F.).)

The California Legislature has promulgated a similar policy: "There is no resource that is more vital to the continued existence and integrity of Indian tribes than their children, and the State of California has an interest in protecting Indian children who are members of, or are eligible for membership in, an Indian tribe. The state is committed to protecting the essential tribal relations and best interest of an Indian child by promoting practices, in accordance with the [ICWA] and other applicable law, designed to prevent the child's involuntary out-of-home placement and, whenever that placement is necessary or ordered, by placing the child, whenever possible, in a placement that reflects the unique values of the child's tribal culture and is best able to assist the child in establishing, developing, and maintaining a political, cultural, and social relationship with the child's tribe and tribal community." (Welf. & Inst. Code, § 224, subd. (a)(1).) "It is in the interest of an Indian child that the child's membership in the child's Indian tribe and connection to the tribal community be encouraged and protected, regardless of whether the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding, the parental rights of the child's parents have been terminated, or where the child has resided or been domiciled." (§ 224, subd. (a)(2).)

"In any case in which this code or other applicable state or federal law provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child, or the Indian child's tribe, than the rights provided under the [ICWA], the court shall apply the higher standard." (§ 224, subd. (d); cf. 25 U.S.C. § 1921.)

II Notice

The Tribe argues it was not provided meaningful notice of the need to change the minor's placement. We agree with the juvenile court that the Tribe did not receive proper notice, but we also concur with the court's conclusion that this error was harmless.

"In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child's tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention." (25 U.S.C. § 1912(a).) "Notice shall be sent whenever it is known or there is reason to know that an Indian child is involved, and for every hearing thereafter, including, but not limited to, the hearing at which a final adoption order is to be granted . . . ." (Welf. & Inst. Code, § 224.2 , subd. (b).)

"Notice under the ICWA must . . . contain enough information to constitute meaningful notice." (In re Karla C. (2003) 113 Cal.App.4th 166, 175.) Here, the notice of the December 2009 review hearing that was provided to the Tribe did not disclose that a placement change was imminent, nor did the Department inform the Tribe when the new placement occurred. We find the Department's contention disingenuous that, because they had not found a new placement for the minor as of the December 2009 review hearing, it was accurate to inform the Tribe that no change in placement was being recommended. Although the Department was not yet ready to change the minor's placement at the review hearing, this was only because it had not yet located a new placement for the minor.

Nonetheless, the Tribe learned of the placement change soon after it occurred and appeared in the matter at the next hearing with a resolution for placement of the minor with a specified family member, Mary M. The Tribe claims, nonetheless, that it was prejudiced by the lack of notice because "it is impossible to peer back in time and to guess at whether another ICWA-compliant placement was available in December 2009." There is no need to guess. The Tribe's representative testified there were no other Indian families available for placement of the minor at the time he was moved other than through TESSA, an agency the Department had rejected for placement of the minor because its families did not have completed home studies. Nothing in the record supports the Tribe's speculation now that other placement options may have been available. To the contrary, it is reasonable to assume that any placement available through the Tribe in December 2009 would have remained available the following month when the Tribe learned of the minor's placement change.

We reach the same conclusion with regard to the Tribe's claim of prejudice based on "the lost time with which to find an ICWA-compliant placement." There is nothing in the record to suggest that the Tribe's inability to uncover other placement options for the minor was the product of time constraints caused by the late notice.

Consequently, we conclude the Tribe was not prejudiced by the Department's failure to provide notice concerning the minor's placement change.

III Good Cause to Deviate from ICWA Placement Preferences

The Tribe also contends the Department failed to make active efforts to locate an adoptive home for the minor in compliance with the ICWA's placement preferences and that there was an absence of good cause to justify deviating from those placement preferences. We agree that the Department failed to make a sufficient effort to consult with the Tribe about a new placement, to expeditiously evaluate the placement alternatives offered by the Tribe, to apply the Tribe's social and cultural standards when evaluating one of these placements, and to assist this placement in obtaining criminal records exemptions. We conclude that, in light of these shortcomings on the part of the Department, the record does not support the juvenile court's finding of good cause to deviate from the ICWA's placement preferences.

The ICWA requires that, "[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a placement with [¶] (1) a member of the child's extended family; [¶] (2) other members of the Indian child's tribe; or [¶] (3) other Indian families." (25 U.S.C. § 1915(a); Welf. & Inst. Code, § 361.31, subds. (c) & (h).) The Supreme Court has identified these mandatory placement preferences as the ICWA's "most important substantive requirement imposed on state courts." (Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 36 [104 L.Ed.2d 29, 39] (Holyfield).) California law requires that, "[w]henever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with the [ICWA]." (Welf. & Inst. Code, § 224, subd. (b); see Cal. Rules of Court, rule 5.482(f).)*fn6

"The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource." (Desiree F., supra, 83 Cal.App.4th at p. 469.) "The ICWA limits the [Department's] discretion in selecting a permanent placement for an Indian child. Thus, the [Department] must search diligently for a placement which falls within the preferences of the act and may reject a preferred placement only on a showing of good cause." (Jullian B., supra, 82 Cal.App.4th at p. 1347.) On the other hand, "Congress, by its use of the term 'good cause,' explicitly intended to provide state courts with flexibility in determining the placement of an Indian child." (Fresno County Dept. of Children and Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 641 (Fresno County).)

The burden of establishing good cause to deviate from the ICWA's placement preferences is on the party requesting that the preferences not be followed. (§ 361.31, subd. (j); see Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67594, F.3(b) (Nov. 26, 1979).) "Our review of a juvenile court's finding of good cause to modify the placement preference order is subject to the substantial evidence test."*fn7 (In re N.M. (2009) 174 Cal.App.4th 328, 335.)

Numerous provisions of the ICWA and California statutory law operate to ensure that diligent efforts are made to place Indian children in conformance with the ICWA's placement preferences. These include requirements that (1) the services of the Indian child's tribe be used, when available, to locate such placements (Welf. & Inst. Code, § 361.31, subd. (g); rule 5.482(g)); (2) the tribe's prevailing social and cultural standards (which may be confirmed by the Indian child's tribe or by evidence from a knowledgeable qualified expert) be applied in meeting the placement preferences (§ 361.31 , subd. (f); see 25 U.S.C. § 1915(d)); and (3) a record of each foster care or adoptive placement of an Indian child be maintained by the State Department of Social Services documenting "the active efforts to comply with the applicable order of preference specified in this section." (§ 361.31, subd. (k); see 25 U.S.C. § 1915(e).)

Furthermore, this court has held that as a child cannot be placed with a caretaker who has been convicted of a crime unless a criminal records exemption has been granted (Welf. & Inst. Code, § 361.4, subd. (d)(2); Health & Saf. Code, § 1522, subd. (a)(4)(A)), the social services agency must seek an exemption of such conviction or explain why it did not do so to establish good cause to avoid the ICWA's placement preferences on the basis of such conviction. (Jullian B., supra, 82 Cal.App.4th at p. 1350; Sen. Com. on Public Safety, Analysis of Sen. Bill 884 (2001-2002 Reg. Sess.) as amended May 8, 2001, p. J.) Although an Indian tribe may independently request an exemption from either the county or the State Department of Social Services to allow placement in an ICWA-compliant placement, this does not "limit[] the duty of a county social worker to evaluate the home for placement or to gather information needed to evaluate an exemption request." (§ 361.4, subd. (f).)

In the present matter, in addition to making only a desultory effort to contact the Tribe when looking for a new placement for the minor, the Department made no attempt to assess placement with Mary M. until ordered by the court to do so many months after the Tribe named her as a placement option. It is true the Tribe did not provide the Department or other parties with the tribal council's resolution for placement with Mary M. as ordered by the juvenile court. But the Department, whose duty it was to make a diligent effort to place the minor in compliance with the ICWA, had other means of obtaining information about the Tribe's designated placement, including requesting a copy of the Tribe's resolution from the court. Furthermore, according to the tribal representative, she contacted the social worker about assessing Mary M. and was told that the Department was not required to do the assessment because the minor was already in a preadoptive home. In fact, the social worker spoke directly to Mary M., according to the Tribe's representative. The Department's delay in assessing Mary M. also precluded early discovery of Mary M.'s reluctance to pursue placement. Had Mary M.'s reluctance been discovered earlier, Jennifer A.'s family could have been assessed earlier in the proceedings.

When the Department finally commenced an evaluation of Jennifer A.'s home, it failed to utilize the Tribe's social and cultural standards during its assessment. As explained by the Supreme Court, the ICWA seeks to protect the rights of Indian children and Indian tribes, in part "by making sure that Indian child welfare determinations are not based on 'a white, middle-class standard which, in many cases, forecloses placement with [an] Indian family.'" (Holyfield, supra, 490 U.S. at p. 37 [104 L.Ed.2d at p. 39].) Yet, according to the kinship unit supervisor, tribal standards were applied only if a tribe was performing the placement assessment. The kinship unit social worker assessing the home was not even aware that the minor was an Indian child and was not familiar with the Tribe's social and cultural standards. And the factors relied on by the Department to foreclose approval of Jennifer A.'s home -- the amount of space in the home and the fact that children over the age of five of different sexes would be sharing a bedroom -- may well reflect the type of cultural bias that the ICWA seeks to avoid.

Finally, the Department did little to assist Jennifer A. and her husband in obtaining exemptions for their criminal records. Mary M. withdrew as a placement option in August 2010, by which time the kinship unit considered Jennifer A. and her husband eligible for exemptions. Yet the only assistance the Department offered Jennifer A. was a suggestion that she try to get a letter of rehabilitation from the criminal court. Even prior to June 2010, Jennifer A.'s 1995 misdemeanor conviction for infliction of corporal injury upon a spouse rendered her subject to "a rebuttable presumption that [she was] not of such good character as to justify the issuance of an exemption" (Cal. Code Regs., tit. 22, § 80019.1, subd. (l); see also id. at subd. (k)(3)), not barred from being granted an exemption as represented by the Department. We agree with the Tribe that the juvenile court erred to the extent it suggested the Department's duty to assist Jennifer A. in seeking a criminal records exemption "was somehow limited by the Tribe's ability to request an exemption for [her]." The Department's duty in this regard was independent of the Tribe's authority to seek an exemption.

In sum, the Department violated the ICWA and California law by (1) not conferring with the Tribe before changing the minor's placement, (2) refusing to assess the Tribe's first placement recommendation until ordered to do so almost five months after the Tribe identified the placement, (3) failing to apply the Tribe's social and cultural standards when assessing the second placement option offered by the Tribe, and (4) failing to assist the family in obtaining criminal records exemptions. We examine the juvenile court's finding of good cause in light of these failings on the part of the Department.

The juvenile court's good cause finding was based, in part, on the fact that the minor had been placed with his current caretakers for six months before Jennifer A. was identified by the Tribe for placement. But as previously discussed, the Department made minimal effort to contact the Tribe about possible placements and did not investigate the first placement option identified by the Tribe during this period. The belated assessment of Mary M. also delayed the discovery of her change of heart about placement of the minor. Early knowledge of this fact would have permitted an earlier assessment of Jennifer A. and her family.

The other basis for the juvenile court's finding of good cause was the minor's marked improvement since being placed with his current caretakers and his close relationship with them, after having gone through a number of placement changes and experiencing behavioral issues. But "[f]actors flowing from [a child's] current placement in flagrant violation of the ICWA, including but not limited to bonding with [the] current foster family and the trauma which may occur in terminating that placement, shall not be considered in determining whether good cause exists to deviate from the placement preferences set forth in the ICWA." (Desiree F., supra, 83 Cal.App.4th at p. 476.)

Without addressing any of the deficiencies in its efforts to comply with the ICWA's placement preferences, the Department contends there was good cause to deviate from these preferences because (1) the criminal records exemption requested by TESSA for Jennifer A. was denied, (2) Jennifer A.'s home did not pass the assessment, and (3) Jennifer A. did not pass the "psycho-social assessment." None of these bases are persuasive. The criminal records exemption requested by TESSA was for a different and more general purpose than the one ultimately requested by the Tribe. The significance of the problems found in Jennifer A.'s home during the assessment are undercut by the failure of the evaluation to take into account the Tribe's social and cultural standards. And neither the rejection of Jennifer A. for placement by the Department nor the juvenile court's good cause finding was based on a "psycho-social assessment" of Jennifer A.

The Department also argues, generally, that it has exclusive care and control of a child once parental rights are terminated, subject to the juvenile court's review to ensure that the Department is not abusing its discretion in this regard and the adoption is completed as expeditiously as possible. These arguments, too, are without merit. It is true that "[w]here the ICWA does not apply, the state or local agency charged with making adoptive placements . . . has exclusive authority to make placement decisions for the child, reviewable only for abuse of discretion." (Jullian B., supra, 82 Cal.App.4th at p. 1345.) However, "in the case of an Indian child, the agency's discretion is confined and guided by the provisions of the ICWA and, if the agency selects a placement which does not comport with the preferences of the act, it must justify its decision by establishing good cause for refusal to do so." (Ibid.) As to the expeditious completion of the minor's adoption, the Department itself undermined this objective by failing to promptly assess the ICWA-compliant placements identified by the Tribe. "[T]he law cannot be applied so as automatically to 'reward those who obtain custody, whether lawfully or otherwise, and maintain it during any ensuing (and protracted) litigation.'" (Holyfield, supra, 490 U.S. at p. 54 [104 L.Ed.2d at p. 50].)

We recognize that the juvenile court made every effort to address the Department's deficiencies in complying with the ICWA's notice and placement preferences. However, largely due to the Department's disinclination to assess the placements identified by the Tribe, this process took more than a year to complete. Thus, by the time of the placement hearing, the juvenile court was left in the difficult position of having to decide between allowing the minor to remain in a stable placement where he was thriving or further delaying permanence for the minor while an ICWA-compliant placement was fully investigated. While we sympathize with the concerns expressed by the court in its ruling regarding the minor, we are compelled to conclude that the record at this point does not support rejection of Jennifer A.'s home -- an ICWA-compliant placement -- as an adoptive placement for the minor.

Jennifer A. has made a consistent effort to maintain an ongoing relationship with the minor throughout the dependency proceedings, and the minor reportedly is comfortable with her family. Although an assessment of her home was never completed, the kinship unit social worker who began the assessment felt the family had the potential to be approved.

We note that when evaluating good cause to deviate from the ICWA's placement preferences, the juvenile court may consider "[t]he extraordinary physical or emotional needs of the Indian child as established by a qualified expert witness." (Rule 5.484(b)(2)(C); cf. Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67594-67595, F.3(a) & Commentary (Nov. 26, 1979).) At oral argument in this matter, the Department acknowledged that an expert was required in order to deviate from the ICWA's placement preferences on this basis. It may be that, here, the extent of the minor's emotional needs and the current caretakers' exceptional parenting abilities warrant a good cause finding on this basis. It is also possible that the minor's needs could be met by Jennifer A. and her husband. The record is insufficient to draw any conclusions on these issues.

Accordingly, we shall remand the matter for an assessment of placement of the minor with Jennifer A. and her husband in compliance with the ICWA and conforming to the views expressed herein.

DISPOSITION

Let a peremptory writ of mandate issue, directing the juvenile court to vacate its order finding good cause to deviate from the ICWA's placement preferences. The matter is remanded for an adoptive placement assessment of Jennifer A.'s home and a determination of whether the minor should be placed in this home, with consideration to be given to the circumstances existing on remand.

I concur: ROBIE , J.

Mauro, J., concurring

I concur in the disposition because I agree that more detailed findings are necessary to support either (1) a tribal placement, or (2) good cause to deviate from the tribal placement preferences. For example, the juvenile court cited, but did not specifically address with findings, the criteria set forth in Welfare and Institutions Code section 361.31, subdivision (h),*fn8 which references subdivision (e).

Nonetheless, I write separately to clarify that on remand, the trial court must continue to consider all of the child's interests. Although Congress and the Legislature have determined that it is in a Native-American child's interest, as a matter of law, to maintain membership in the child's tribe and connection to the tribal community (In re Desiree F. (2000) 83 Cal.App.4th 460, 469; § 224, subd. (a)(2)), it is well-established that a child also has strong interests in stability, permanency, and safety. (See, e.g., In re Z.W. (2011) 194 Cal.App.4th 54, 64-67; In re X.V. (2005) 132 Cal.App.4th 794, 804; In re Amber F. (2007) 150 Cal.App.4th 1152, 1156; see also In re Stephanie M. (1994) 7 Cal.4th 295, 317; § 352, subd. (a).) The juvenile court must consider all of these factors. (In re Z.W., supra, 194 Cal.App.4th at p. 64.) Thus, notwithstanding the presumption favoring a tribal placement (25 U.S.C. § 1915, subd. (a); § 361.31, subds. (c), (h)), the juvenile court retains the authority, if supported by sufficient findings, to deviate from the tribal placement presumption when necessary to protect the child.

The record in this case establishes that the juvenile court was properly cognizant of the legal preference for tribal placement. The juvenile court continued the matter a number of times, gave the tribe the opportunity to assert, brief and argue its rights and preferences, ordered assessment of Mary M.'s home, and held a five-day contested hearing.

But the juvenile court also properly considered the child's interests in stability, permanency and safety. The court found that the child had lived in approximately eleven homes in five years, that both the Department and the tribe failed to act diligently, that the child's behavior had deteriorated in a prior placement, that he displayed numerous emotional, mental and medical problems in a prior placement, and that the child has never done better than he is doing now in his current placement. The juvenile court concluded that under these particular circumstances, good cause existed to deviate from the preference for tribal placement, apparently recognizing that at some point, "[a] line has to be drawn." (In re Z.W., supra, 194 Cal.App.4th at p. 67.)

The juvenile court noted that the Federal Guidelines under the Indian Child Welfare Act (ICWA) and Rule 5.484, subdivision (b), of the California Rules of Court give the juvenile court flexibility in determining the best interests of the child. The Department argued this point on appeal. Of course, the juvenile court must also comply with section 361.31. That statute, however, must be interpreted in a manner consistent with the juvenile court's ultimate responsibility and authority to protect the child. (See, e.g., In re G.L. (2009) 177 Cal.App.4th 683, 696-698; In re A.A. (2008) 167 Cal.App.4th 1292, 1328-1330; see also § 224, subd. (b) [proceedings must comply with ICWA].)

MAURO , J.


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