IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte)
February 16, 2012
IN RE J.M. ET AL., PERSONS COMING UNDER THE JUVENILE COURT LAW. BUTTE COUNTY DEPARTMENT OF EMPLOYMENT AND SOCIAL SERVICES, PLAINTIFF AND RESPONDENT,
M.M., DEFENDANT AND APPELLANT; M.F., APPELLANT.
(Super. Ct. Nos. J32522, J32523, J32524)
The opinion of the court was delivered by: Duarte , J.
In re J.M. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
M.M. (mother) appeals from the juvenile court's orders denying her petition to modify previous orders and terminating her parental rights as to minors J.M., Ma.M., and L.M. (Welf. & Inst. Code,*fn1 §§ 366.26, 388, 395.) Mother contends that the court erred by denying her section 388 petition and by finding several statutory exceptions to adoption inapplicable.
Mother's youngest child, Me.M., currently in mother's custody under a family maintenance plan, has also appealed the termination of parental rights and filed a separate brief containing several additional contentions, with which mother joins. As we will explain, we reject the claims of error and shall affirm the orders of the juvenile court.
FACTUAL AND PROCEDURAL BACKGROUND
Petitions and Initial Proceedings
On August 22, 2008, the Butte County Department of Employment and Social Services (the Department) filed section 300 petitions as to J.M. (a girl born in November 2000), Ma.M. (a boy born in November 2001), L.M. (a boy born in June 2003), and Me.M. (a girl born in May 2004). The petitions alleged that mother maintained a filthy home, had a longstanding substance abuse problem, and had gone through a prior dependency proceeding with the minors, during which the services of father (now an incarcerated felon) had been terminated.
Pursuant to the Indian Child Welfare Act (ICWA), the parents claimed ancestry in the "Big Valley Pomo Tribe"*fn2 and Mechoopda Indian Tribe of the Chico Rancheria, and that the minors were members/might be eligible for membership in both tribes.
The detention reports confirmed that the minors and father were enrolled members of the Big Valley Tribe; mother was an enrolled member of the Mechoopda Tribe and eligible for membership in the Big Valley Tribe and possibly other tribes.
On August 26, 2008, ICWA notice was sent to the Big Valley Tribe, the Mechoopda Tribe, and other tribes.
As of September 29, 2008, the Department had return receipts from all the noticed tribes. The record shows no response from the Mechoopda Tribe. However, the Big Valley Tribe applied to intervene in the proceedings, and the juvenile court granted the application.*fn3
At the jurisdictional hearing, the juvenile court found the allegations of the section 300 petitions true and authorized the appointment of an Indian expert.
The disposition report recommended out-of-home placement for the minors and reunification services for mother, but not for father.
The minors were placed together in a certified non-Indian foster home. They had not been placed in an Indian home because no known Indian home could take all four minors, the tribe had not provided a placement, and there were no appropriate relatives who could be approved for placement.
The minors were developmentally normal, except for J.M., who had Down's Syndrome and a heart murmur. The three younger minors attended Four Winds School (Me.M. in preschool, L.M. in kindergarten, and Ma.M. in first grade).*fn4 J.M. was in third grade at a regular elementary school, where she attended a special education class and used an Individualized Education Plan (IEP). The minors were all receiving counseling or therapy in school.
Mother denied a substance abuse problem and saw no reason why the minors needed to be removed from her home. She continued to associate with parolees and participate in domestic violence. She was participating inconsistently in services and had not made her home clean and safe. Her visitation was still supervised.
The report of Indian expert Nanette Gledhill opined that the breakup of the Indian family by removing the minors from mother's custody was necessary, active but unsuccessful efforts had been made to prevent the breakup of the family, and clear and convincing evidence showed a likelihood of serious emotional or physical damage to the minors if they were not removed from mother's custody. Mother had improved the conditions at her home but not enough to safely house the children; the home still lacked heat and electricity.
An addendum report stated that mother continued to associate with dangerous people. She had been involved in a romantic relationship with her husband's cousin, a parolee and sex offender who had previously assaulted her. The social worker discovered mother "having a romantic interlude with" father, recently paroled on conditions that barred contact with mother or the minors; he was returned to prison for parole violations.
At the dispositional hearing, the juvenile court ordered all four minors detained and that mother be provided with reunification services.
The six-month status review report recommended further out-of-home placement for the minors and services for mother. Me.M. was now in a different foster home from the others. She was moved in May 2009 because her brothers had acted out sexually with her. She said her brothers had "touched her on the butt" and all the minors had seen mother "do the 'nasty'" with father. Ma.M., who was molested in 2005,*fn5 had inappropriately touched L.M. while in placement. They now had separate bedrooms. L.M. continued to have "melt down issues and temper tantrums." He was diagnosed as depressed, but had not been prescribed medication.
At the six-month review hearing, the juvenile court continued the minors' placements and mother's services.
The 12-month review report recommended six more months of services for mother, who had progressed to unsupervised visitation with the minors. The three oldest minors had been moved to new placements as of September 2009. Due to Ma.M.'s sexual acting-out, he had been placed separately from J.M. and L.M., who remained together. Me.M. was still placed separately from the others. At the 12-month hearing, held on October 1, 2009, the juvenile court found mother's progress to be "good" and continued the children's detention and mother's services.
In a status review report dated February 11, 2010, the Department recommended terminating mother's services at the
18-month hearing and setting a section 366.26 hearing as to all the minors. Mother had continued to drug test negative, to engage in counseling, and to improve in parenting skills. But during her first unsupervised overnight visit with the minors at her home, the boys again molested Me.M.*fn6 Thus, the minors could not safely be returned home because mother could not protect them "due to their sexual acting out behavior."
Me.M. was now a "very sexualized little girl[.]" Ma.M. was still seeing multiple counselors for his sexual acting out and other problems. J.M. still had difficulty with "boundary issues" and "constantly had to be re-directed due to her disability." L.M. still had difficulty when things did not go his way or when he left mother after their visits.
The Department planned to make an adoption referral and to consult the Big Valley Tribe on a permanent placement plan. A report by the state adoptions services bureau, filed April 7, 2010, stated that "[p]ermanency families" had not yet been found for the minors, who had all been in multiple placements since their original dependency proceeding in 2004.
At the 18-month hearing on April 13, 2010, the juvenile court terminated mother's services and set a section 366.26 hearing as to the three oldest minors, and authorized the appointment of an Indian expert. However, at the Department's request pursuant to a "resolution" of the contested proceedings, the court ordered Me.M. placed in mother's custody under a family maintenance plan and set the matter for a six-month review as to her.*fn7
On September 15, 2010, the Big Valley Tribe provided the Department with a declaration, signed by the tribe's ICWA representative, stating in summary that the tribe agreed it would be in the best interest of the minors to terminate parental rights and proceed with conventional open adoptions. The declaration also stated that a tribal resolution would be "submitted in the future."*fn8
In October 2010, the state adoptions bureau recommended that the juvenile court order a permanent plan of adoption for all three minors, but terminate mother's parental rights only as to J.M. and L.M. because Ma.M., unlike them, did not yet have foster parents willing and able to adopt him. J.M. and L.M. were bonding to their foster mother and foster siblings and finding a level of security they had lacked. The foster mother had agreed to maintain their contact with their siblings. She had also met with a tribal representative and intended to enhance the minors' connection to Big Valley culture.
The section 366.26 report, filed November 23, 2010, recommended that the juvenile court select a permanent plan of adoption for J.M., Ma.M., and L.M., but terminate parental rights only as to J.M. and L.M., while continuing the section 366.26 hearing as to Ma.M.
The report noted that the intervening tribe had never identified available Indian homes that could take any or all of the minors, provided preferential placements, or suggested appropriate relative placements; instead, it had approved the Department's plans. Because "the [t]ribe as a whole is currently not in wellness, [h]ealthy and stable options for tribal placement are virtually non-existent, and minimal options are far overridden by [J.M.'s and L.M.'s] need and desires to remain in their current situations."
Mother recently failed to show up for a meeting with J.M.'s IEP team and had not signed any of the required IEP paperwork. L.M. was moved from Four Winds School. Before his transfer to another school, he had suffered "ongoing emotional disturbances" because Me.M. taunted him about the fact that she had returned home while he and Ma.M. remained in foster care.
Mother's "heavily supervised" visits with the minors were not going well. She had asked Ma.M. and L.M. inappropriate and manipulative questions, causing them to be "preoccupied" and "very distant" from their foster parents after the visits. The supervising social worker thought even monthly visits were detrimental to the minors.
On December 30, 2010, Indian expert Annette Gledhill submitted a declaration opining that active but unsuccessful efforts had been made to prevent the breakup of the Indian family, continued care and custody by the parent was likely to result in serious emotional or physical damage to the minors, and out-of-home care and adoption for the three older minors were appropriate "beyond a reasonable doubt." Based on review of court records (including the tribe's declaration) and interviews with the social worker and social worker supervisor, Gledhill concluded that mother had failed to make "adequate, stable and consistent progress" and the tribe supported the Department's plans.*fn9
Selection and Implementation/Section 388 Hearing
On January 20, 2011, mother filed section 388 petitions requesting the return of J.M., Ma.M., and L.M. to her custody under a family maintenance plan. The juvenile court set mother's petition for hearing together with the section 366.26 proceeding. The consolidated section 388/section 366.26 hearing began on February 3, 2011, and concluded on April 14, 2011.
During the proceeding, the juvenile court ordered the state adoptions bureau to assess the impact of adoption on the minors' sibling relationship. The new assessment concluded that the significant benefits of adoption to the siblings in placement far outweighed any potential detriment to their relationship with Me.M., with whom the others had not lived since May 2009. Both L.M. and Ma.M. had suffered from Me.M.'s taunting after her return to mother's custody, although the siblings enjoyed seeing each other on visits. The older siblings had not requested more frequent contact with Me.M. The prospective adoptive parents of J.M. and L.M. were committed to maintaining the sibling relationship.
The assessment also reported that prospective adoptive parents for Ma.M. had been found, and he had moved in with them in February 2011. He was no longer attending Four Winds. He had a "warm, trusting relationship" with the prospective adoptive family, "appear[ed] to be developing significant emotional ties" to them, and "indicate[d] that he fe[lt] secure in their care." The prospective adoptive parents did not want to sign formal agreements to maintain sibling contact, but would engage in informal discussions on that subject.
On March 30, 2011, Me.M. filed section 388 petitions requesting standing to argue exceptions to her siblings' adoptability on the ground that she and they shared a sibling bond and "significant common cultural experiences." The juvenile court granted standing to Me.M. for the purpose she requested.
At the outset of the consolidated proceeding, the Department offered the declaration or telephone testimony of Indian expert Gledhill, who was not present; mother objected. On the last day of the proceeding, the juvenile court overruled mother's objection (now joined by Me.M.) and permitted Gledhill to testify by telephone. The court also permitted retired social worker Tina Smith to testify telephonically, over objection.
Parenting teacher Barbara Dunbar-Elam testified that she had worked with mother for a year and a half, and had observed mother's supervised and unsupervised visits from June to November 2009. In Dunbar-Elam's opinion, mother's parenting skills had improved, and the conditions in her home were acceptable for children.
Adoptions specialist Sydne Murua testified that Ma.M.'s prospective adoptive parents were prepared to address his sexualized behavior and intended to engage him in Indian cultural activities. It would not be safe to place him with J.M. and L.M. Even though there was a bond between the siblings, interference with the sibling relationship through adoption would not be detrimental to Ma.M. The tribe supported his placement.
According to Murua, the focus now was on maintaining contact among the three older siblings. There was no current plan to maintain contact between them and Me.M., although the agency and the foster parents were open to doing so. Me.M.'s taunting had been detrimental to L.M. and Ma.M., and this potential conflict would continue while Me.M. remained with mother. In Murua's opinion, the benefit of adoption for the older minors was "critical . . . hopefully, we can continue to heal their relationships[.]"
Gary Hartley, the case-carrying social worker from June 2009 until April 2010 (when mother's services were terminated as to the older minors), and still the social worker for Me.M.'s case, testified that he concluded Me.M. would be safe in mother's home if placed there alone. He had not considered placing any of the other minors there because of their sexualized behavior.
According to Hartley, the four minors were "close and attached" and looked forward to seeing each other. While Hartley still had the case, they visited each other weekly, and the visits went "fairly well." He believed they should continue to have "some supervised contact." He had heard that it was emotionally upsetting for the minors when their visits ended.
Hartley was aware that after mother's services were terminated she entered a support group for parents of sexualized children, but had stopped attending. Mother felt she was benefiting from counseling obtained through her tribe, but Hartley had not seen progress reports.
Tina Smith, the case-carrying social worker for the three older minors from the termination of mother's services until March 2011, and the preparer of the section 366.26 report, opined that Ma.M was adoptable despite his problems stemming from sexual abuse. Smith did not know whether Ma.M.'s prospective adoptive parents would foster his connection to his Indian cultural traditions; she knew, however, that a tribal representative had visited J.M. and L.M. at their foster home and was committed to working with their foster parents to maintain their connections to Indian traditions. All of the minors' caretakers were open to maintaining future contacts among the siblings, including Me.M.
Indian expert Gledhill testified that it was her practice (though not required by ICWA) to ascertain whether Indian children placed in non-Indian homes would retain their tribal connections. In doing so, she would normally speak to the tribal representative and did in this case. Gledhill had not spoken to a representative of the Mechoopda Tribe because it did not intervene in the case. She did not know whether the minors had been "raised within the cultural practices of the [Big Valley] tribe[,]" but she understood that they had remained connected to the tribe. Connection to the tribe entailed participating in the tribe's ceremonial dances, visiting family members residing on the reservation, taking part in activities such as powwows that involved Native Americans of other tribes, understanding their history and the tribe's history, and understanding their Indian ancestry. According to Jefferson, the minors, if placed with their current caretakers, would remain connected to the tribe in this sense.*fn10
Gledhill did not know whether the minors had membership rights in the Mechoopda Tribe. If two tribes are related to children, it is up to them to communicate with each other and decide which one would take the lead; here, the Big Valley Tribe did so.
Mother testified that she was raised within Indian culture and identified with seven different tribes; she practiced the Big Valley and Mechoopda traditions at home. She lived at Big Valley Rancheria from 1999 to 2006, and on other tribal lands at other times. The minors lived at Big Valley Rancheria until they were detained in 2008; they had not been back there since, but she had returned often. L.M. was enrolled in the Mechoopda Tribe, and all the minors had membership rights in that tribe through mother.
When raising the minors, mother made frybread (a Big Valley tradition) and acorn soup (a Mechoopda tradition), and explained their cultural significance. She regularly brought the minors to dances at Big Valley Rancheria and to powwows where different tribes met; she made Big Valley apparel and regalia for the minors' use when they attended these events. She was involved in Mechoopda "elder dinners," where the tribal elders told their stories to the children. J.M. and Ma.M. had gone to sweat lodges. Mother chose Four Winds School for the minors.
Mother argued against termination of parental rights as to the three older minors on the grounds that it would substantially interfere with the sibling relationship (§ 366.26, subd. (c)(1)(B)(v)) and the minors' connection to their tribal community or tribal membership rights (§ 366.26, subd. (c)(1)(B)(vi)). All the minors joined in these arguments.
The juvenile court ruled that the three older minors were adoptable by clear and convincing evidence, and none of the pertinent exceptions to adoption applied.
As to the beneficial parental relationship exception,*fn11 the court found that mother had maintained regular visitation and contact, but had not shown that the minors would benefit so much from continuing the relationship that it would outweigh the benefits of adoption or that terminating parental rights would be detrimental to the minors.
As to the sibling relationship exception, the court found insufficient evidence of possible substantial interference with the relationship, because the prospective adoptive parents were committed to maintaining it. But even if there were interference with the relationship, the benefits of maintaining it would not outweigh those of adoption.
As to the possibility of interference with the minors' connection to their tribal community, the court found that the intervening tribe supported termination of parental rights and adoption by non-Indian homes, and the tribal representative was committed to ongoing contact with the minors to maintain their tribal connection. The court also found beyond a reasonable doubt that continued custody of the minors by mother was likely to result in serious emotional or physical damage to them.
Finally, the court denied mother's section 388 petition because there was insufficient evidence that granting it would be in the minors' best interests.
For all of these reasons, the court terminated mother's parental rights as to the three older minors and ordered a permanent plan of adoption for them.
Section 388 Petition
Mother contends the juvenile court abused its discretion by denying her section 388 petition. We disagree.
A petition to modify a juvenile court order under section 388 must allege facts showing that new evidence or changed circumstances exist, and that changing the order will serve the minor's best interests. (In re Daijah T. (2000) 83 Cal.App.4th 666, 672.) The petitioner has the burden of proof on both points by a preponderance of the evidence. (Cal. Rules of Court, rule 5.570(h)(1)(D).) In assessing the petition, the court may consider the entire history of the case. (In re Justice P. (2004) 123 Cal.App.4th 181, 189.)
To decide whether mother met her burden, the juvenile court need consider such factors as the seriousness of the problem that led to the dependency, and the reason for the problem's continuation; the degree to which the problem may be and has been removed or ameliorated; and the strength of the relative bonds between the dependent children and their parents and caretakers. However, this list is not exhaustive. (In re B.D. (2008) 159 Cal.App.4th 1218, 1229; In re Kimberly F. (1997) 56 Cal.App.4th 519, 532.)
Where a section 388 petition has been denied after an evidentiary hearing, we review for abuse of discretion. (In re S.R. (2009) 173 Cal.App.4th 864, 866.) We reverse only if the ruling exceeded the scope of the court's discretion, or if under all the evidence (including reasonable inferences therefrom), viewed most favorably to the ruling, no reasonable judge could have made that ruling. (Great West Contractors, Inc. v. Irvine Unified School Dist. (2010) 187 Cal.App.4th 1425, 1459; In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.) Where the evidence conflicts, we reverse only if the evidence compels a finding for the appellant as a matter of law. (In re I.W. (2009) 180 Cal.App.4th 1517, 1527-1529.)
The juvenile court denied mother's petition under the second prong of section 388: she failed to show that it would be in the best interests of J.M., Ma.M., and L.M. to return them to her custody. This finding was well within the court's discretion.
The situation that led the juvenile court to terminate mother's services as to the three older minors--her continued lack of understanding and accommodation of their incestuous sexual behaviors--remained unchanged. Months after the minors had been put in three separate placements to keep them from acting out sexually with each other, she put them together in one bed for the night without supervision. The evidence that she presented at the hearing failed to show that she had gained insight into this issue. Though she began a counseling program for parents of sexualized children, she stopped attending. Therefore, the court had no reason to reconsider its finding that the minors could not safely be placed together in mother's custody, particularly with Me.M there.
Further, it was undisputed that the minors were adoptable and had been placed in prospective adoptive homes. Given the legislative preference for adoption as well as the lack of stability in these minors' young lives, the court could presume, absent evidence to the contrary, that it was in the minors' best interests to stay where they were. Mother presented no evidence to overcome this presumption.
Mother has failed to show that the juvenile court abused its discretion by denying her section 388 petition.
Beneficial Parental Relationship Exception
Mother contends that insufficient evidence supports the order terminating parental rights because the beneficial parental relationship exception to adoption applies. We question whether this contention is properly before us because the record does not reflect that mother raised this issue in the juvenile court.*fn12 But even assuming the claim is not forfeited, the argument fails to persuade.
At the selection and implementation hearing, the juvenile court must choose one of four alternative permanent plans for a minor; the permanent plan preferred by the Legislature is adoption. If the minor is adoptable, the court must terminate parental rights absent a showing of detriment to the minor. (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368.)
The parent has the burden of establishing by a preponderance of the evidence that a statutory exception to adoption applies. (In re Valerie A., supra, 152 Cal.App.4th at p. 998; In re Zachary G., supra, 77 Cal.App.4th at p. 809.) Mother did not meet this burden as to the beneficial parental relationship exception because she presented no evidence aimed at showing the applicability of this exception.
In any event, substantial evidence supports the juvenile court's ruling. To show that the beneficial parental relationship exception applies, it is not enough simply to show "some benefit to the child from a continued relationship with the parent, or some detriment from termination of parental rights." (In re Jasmine D., supra, 78 Cal.App.4th at p. 1349.) Even a strong and positive parent-child attachment is insufficient for purposes of this exception, if the minors look to their prospective adoptive parents to meet their needs. (In re Zachary G., supra, 77 Cal.App.4th at p. 811.)
By the time of the permanency hearing, the three oldest minors had been out of mother's care for well over two years. The social worker who supervised mother's visits opined that because of her inappropriate and manipulative conduct, which visibly troubled the minors, even one visit a month was detrimental to them. Mother had recently failed to fulfill her educational obligations to J.M. and had been unable to protect the younger three minors from their incestuous behavior toward one another. Finally, the evidence showed that all three minors were looking to their prospective adoptive parents to meet their needs. In short, mother failed to show either that her relationship with these minors was strong and positive or that its benefits to them outweighed those of adoption.
Sibling Relationship Exception
Mother contends that the juvenile court erred by failing to apply the sibling relationship exception to adoption. We disagree.
The sibling relationship exception to adoption applies if "[t]here would be substantial interference with a child's sibling relationship, taking into consideration the nature and extent of the relationship, including, but not limited to, whether the child was raised with a sibling in the same home, whether the child shared significant common experiences or has existing close and strong bonds with a sibling, and whether ongoing contact is in the child's best interest, including the child's long-term emotional interest, as compared to the benefit of legal permanence through adoption." (§ 366.26, subd. (c)(1)(B)(v).) A parent appealing the termination of parental rights has standing to raise this exception. (In re Erik P., supra, 104 Cal.App.4th at p. 402.)
The juvenile court found that there was no showing of any likelihood of substantial interference with the sibling relationship because the prospective adoptive parents had indicated their intent to maintain the sibling relationship. The court also found that even if there might be interference with the sibling relationship, the benefits of adoption for the three older siblings clearly outweighed any possible detriment. Substantial evidence supports both findings.
As to the first finding, the evidence is clear that the prospective adoptive parents of the three older siblings were committed to maintaining the sibling relationship among them. Adoptions specialist Murua testified that the adoptions agency and the foster parents were also open to maintaining contact between the older siblings and Me.M., and mother presented no evidence to the contrary. Thus, mother failed to show the likelihood of substantial interference with the sibling relationship.
As to the second finding, it is true that all four siblings were originally raised in the same home, shared significant common experiences, and had maintained close bonds. It is also true, however, that: (1) they had lived separately (except for J.M. and L.M.) for a substantial time; (2) their "close and strong bonds" (§ 366.26, subd. (c)(1)(B)(v)) included sexual molestation, which had required separate placements to begin with; (3) the bond between Me.M. and the two boys had been strained by her hurtful taunting; (4) the older siblings had not indicated that they wanted to see Me.M. more often than they already were; and (5) the older siblings were entitled to the permanency afforded by adoption. Thus, substantial evidence supported the court's finding that even if the adoption of J.M., Ma.M., and L.M. caused interference with the sibling relationships of all four minors, the benefit of maintaining those relationships was not sufficient to outweigh the benefit of adoption.
Mother contends that the juvenile court erred by terminating parental rights because doing so would substantially interfere with the minors' connection to their tribal community. We disagree.
This exception to adoption applies when "[t]he child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to: [¶] (I) Termination of parental rights would substantially interfere with the child's connection to his or her tribal community or the child's tribal membership rights[.]" (§ 366.26, subd. (c)(1)(B)(vi).)
We conclude the juvenile court did not abuse its discretion in ruling that this exception to adoption did not apply. (See In re A.A. (2008) 167 Cal.App.4th 1292, 1322-1323.)
Section 224, subdivision (a)(2), makes clear that the goal of maintaining Indian children's connection to their tribal community does not preclude the termination of their parents' rights and adoption by non-Indian parents. Here, the intervening tribe and the Indian expert supported these measures after being satisfied that the prospective adoptive parents had taken steps to maintain the minors' tribal connection and would continue to do so. Although mother cites evidence that she believed no connection would be maintained, the juvenile court could reasonably have relied on the contrary conclusions of the tribe and the Indian expert (endorsed by the social worker and the adoptions specialist).
Mother did not establish that adoption would substantially interfere with the minors' connection to their tribal community. Nor did she establish that even if such interference occurred, it would constitute a "compelling reason for determining that termination of parental rights would not be in the best interest of [the minors]" (§ 366.26, subd. (c)(1)(B)(vi)), given the conclusions set forth ante regarding how the minors' best interests would be served by termination of parental rights and adoption.
Preference and Active Efforts
Mother joins in Me.M.'s first argument*fn13 that the juvenile court and the Department did not comply with ICWA's requirements as to placement and "active efforts." We are not persuaded.
The relevant requirements are codified in California law in section 361.31, which provides in pertinent part:
"(a) In any case in which an Indian child is removed from the physical custody of his or her parents . . . pursuant to Section 361, the child's placement shall comply with this section.
"(b) . . . Preference shall be given to the child's placement with one of the following, in descending priority order:
"(1) A member of the child's extended family, as defined in Section 1903 of [ICWA].
"(2) A foster home licensed, approved, or specified by the child's tribe.
"(3) An Indian foster home licensed or approved by an authorized non-Indian licensing authority.
"(4) An institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
"(c) In any adoptive placement of an Indian child, preference shall be given to a placement with one of the following, in descending priority order:
"(1) A member of the child's extended family, as defined in Section 1903 of [ICWA].
"(2) Other members of the child's tribe.
"(3) Another Indian family.
"(d) Notwithstanding the placement preferences listed in subdivisions (b) and (c), if a different order of placement preference is established by the child's tribe, the court or agency effecting the placement shall follow the order of preference established by the tribe, so long as the placement is the least restrictive setting appropriate to the particular needs of the child as provided in subdivision (b).
"(e) Where appropriate, the placement preference of the Indian child, when of sufficient age, or parent shall be considered. . . . [¶] . . . [¶]
"(h) The court may determine that good cause exists not to follow placement preferences applicable to subdivision (b), (c), or (d) in accordance with subdivision (e).
"(i) When no preferred placement under subdivision (b), (c), or (d) is available, active efforts shall be made to place the child with a family committed to enabling the child to have extended family visitation and participation in the cultural and ceremonial events of the child's tribe.
"(j) The burden of establishing the existence of good cause not to follow placement preferences applicable under subdivision (b), (c), or (d) shall be on the party requesting that the preferences not be followed."
"In deciding whether good cause exists to deviate from the statutory placement preferences, the court should consider various factors set forth in ICWA's Guidelines, including: (1) the request of the biological parents; (2) the request of the child; (3) the extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness; and (4) the unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria. [Citations.] The burden is on the proponent of the good cause finding . . . to show there is an exception to the placement preferences. [Citation.]" (In re G.L. (2009) 177 Cal.App.4th 683, 697.)
We review the court's determination to bypass ICWA's placement preferences under the substantial evidence test. (Ibid.)
Mother and Me.M argue that, "[T]he record does not demonstrate that the Department made any attempt to consult with the Mechoopda Tribe to comply with the placement requirements and preferences of the ICWA." The record does not support this argument.
The Department sent ICWA notice to the Mechoopda Tribe at the outset and obtained a return receipt. The Department thereafter notified the tribe of the impending section 366.26 hearing and of each continuance of that hearing, and obtained return receipts. The tribe did not respond to any of these notices. Mother and Me.M. fail to explain what more the Department was required to do to "attempt to consult with the Mechoopda Tribe" or how it could have done so. And since that tribe declined all opportunities to state a preference as to the minors' placement, the juvenile court could reasonably conclude the tribe did not wish to be consulted on this point.
Me.M. asserts the record does not show that the juvenile court ever found good cause to "alter" ICWA's placement preferences. (§ 361.31, subd. (h).) But the court's disposition order plainly states that good cause existed for failure to achieve the placement preference of the ICWA, noting that a diligent search had failed to locate a suitable relative or Indian home. Because no "suitable relative or Indian home" surfaced later in the litigation, the court did not need to repeat this finding at each stage thereof.
Me.M. argues that the Big Valley Tribe failed to submit a resolution establishing its placement preference. (25 U.S.C. § 1915(c); § 361.31, subd. (d); Cal. Rules of Court, rule 5.484(b)(4).)*fn14 But she cannot show prejudice from the tribe's technical noncompliance with this requirement, and we conclude the omission is harmless. The declaration by the tribe's ICWA representative, reporting the decision reached by a tribal council meeting, clearly established the tribe's placement preference.*fn15 Nothing in the record suggests that if the tribe had submitted a formal resolution it would have proposed a different placement.
Finally, Me.M contends that the record is silent as to whether the Department did everything possible to investigate the feasibility of Indian placements before it recommended departing from ICWA's placement preferences. On appeal, we presume that official duty was regularly performed unless the record affirmatively shows otherwise. (Evid. Code, § 664.) The Department consistently reported to the juvenile court that its efforts to find relative or non-relative Indian placements had been unsuccessful (partly because the Big Valley Tribe was "currently not in wellness"), and the tribe's declaration was consistent with the Department's reports. Absent evidence to the contrary, we must presume the Department did all it reasonably could have done.
B. Active Efforts
Me.M. argues that, before seeking termination of parental rights, the Department failed to prove that "active efforts ha[d] been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts ha[d] proved unsuccessful." (25 U.S.C. § 1912(d); § 361.7, subd. (a).) This contention borders on frivolous.
We have described ante the efforts made by the Department and others "to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family" from August 22, 2008, when the current phase of the proceedings began, to November 23, 2010, when the Department first recommended the termination of parental rights. Despite this record of effort, Me.M. again argues for the mandatory inclusion of the Mechoopda Tribe in the efforts. She speculates, without citation to authority, that the extensive counseling and therapy offered mother and the minors was factually or legally insufficient. She argues that the record is silent on various points as to the efforts made by the Department, failing to recognize the burden on appeal to produce affirmative evidence of official dereliction of duty. (Evid. Code, § 664.) She makes additional arguments regarding exceptions to adoption, which are not properly signaled with headings or subheadings, and we thus deem them forfeited. (Cal. Rules of Court, rule 8.204(a)(1)(B); Heavenly Valley v. El Dorado County Bd. of Equalization (2000) 84 Cal.App.4th 1323, 1346; Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1827, 1830, fn. 4.)
Me.M., joined by mother, cannot show any substantive failure to comply with ICWA.
Mother also joins in Me.M.'s second and final contention that the juvenile court improperly denied them the opportunity to cross-examine Indian expert Gledhill and social worker Smith (author of the § 366.26 report) at the permanency hearing when the court permitted their telephonic testimony. We find no error.
"The parties to dependency proceedings have a due process right, confirmed by court rule, to confront and cross-examine witnesess." (In re Matthew P. (1999) 71 Cal.App.4th 841, 849; cf. Cal. Rules of Court, rule 5.534(k).) However, appellants cite no authority, and we know of none, that holds telephonic testimony is a violation of due process in this context.
The record shows that both witnesses were thoroughly cross-examined by all opposing counsel, thus revealing, among other weaknesses in their testimony, the short-term memory problems cited by social worker Smith as one of the reasons for her retirement on disability, and the fact that Indian expert Gledhill did not know whether the Big Valley Tribe had produced a resolution stating its placement preference. Me.M. speculates that it could have made a difference to the court's assessment of these witnesses' credibility had the court observed their demeanor in person, but fails to show that the court's inability to do so amounted to a deprivation of due process.
The orders terminating mother's parental rights are affirmed.
We concur: BLEASE , Acting P. J. HULL , J.