APPEAL from a judgment of the Superior Court of Yolo County, Steven M. Basha, Judge. (Super. Ct. No. JV08500)
The opinion of the court was delivered by: Hull , Acting P. J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
M.W., mother of the minor, and the Pit River Tribe (Tribe) appeal from orders terminating parental rights after reversal of the previous termination orders and remand in case No. C067143 for a new hearing on mother's petition for modification. (Welf. & Inst. Code, §§ 366.26, 395; further undesignated statutory references are to the Welfare and Institutions Code.) Mother argues the court erred in denying her petition for modification (§ 388) and failed to apply the Indian child exception to termination of parental rights. The Tribe raises various issues related to tribal customary adoption (TCA) and the Yolo County Department of Employment and Social Services' (Department) inaction with respect to TCA. We affirm the juvenile court's orders.
The infant minor was removed from parental custody and adjudged a dependent child in 2008. Mother claimed Indian heritage and the minor was enrolled as a member of the Tribe of Burney California. Mother failed to reunify after 18 months of services and in May 2010, the court set a selection and implementation hearing to choose a permanent plan for the minor. The Department recommended termination of parental rights and a permanent plan of adoption.
Prior to the selection and implementation hearing, mother filed a petition for modification seeking reinstatement of reunification services. After a hearing on the petition in December 2010, the court denied the request for services believing it lacked authority to order services past the statutory 18-month time limit. (§ 361.5, subd. (a)(3).) At the selection and implementation hearing in January 201l, the court found guardianship was in the minor's best interests based on evidence that termination of parental rights would result in the minor losing his membership in the Tribe if not adopted by a tribal member. The court wanted the Tribe to consider TCA.
Mother appealed the denial of her petition for modification. This court reversed the denial and the order terminating parental rights and remanded the case for a new hearing on the petition for modification.
While the appeal was pending, a review report in July 2011 stated the tribal representative told the social worker the Tribe had taken no action on TCA, preferring guardianship as a permanent plan for the minor. The caretaker information form detailed the caretakers' efforts to maintain the minor's connection to his Tribe and to Native American cultural practices in general, including finding a mentor from the minor's Tribe who taught the minor songs and drumming. The form also stated that the minor was somewhat resistant to attending visits with mother and slept for several hours following each visit. The caretakers wanted to adopt the minor to provide him emotional stability. At the review hearing, the court again set a selection and implementation hearing and expressed concerns about whether adoption would affect the minor's status as a tribal member.
In August 2011, mother filed a second petition for modification seeking return of the minor with family maintenance services or renewed reunification services with increased visitation. She alleged the modification would be in the minor's best interests because he was bonded to her and his sibling and needed interaction with his specific band of the Tribe. Various documents were attached to the petition to demonstrate mother's ongoing sobriety and progress in relapse prevention. Additional documentation, including letters from the Sacramento Native American Health Center regarding mother's relapse prevention efforts, her home visitations to improve parenting and her participation in cultural events was subsequently provided.
The report for the selection and implementation hearing concluded the minor was adoptable and recommended termination of parental rights with adoption by the current caretakers. Mother regularly attended supervised visitation and visits were generally appropriate.
An assessment from the California Department of Social Services (CDSS) stated that the minor was placed in a Native American certified foster home under legal guardianship. The guardians wished to adopt the minor. The minor was described as a healthy, happy, loving and social child who was well bonded to his guardians. The guardians each had formal education in Native American studies. They were committed to supporting his cultural connection to his Tribe, had taken him to Native American events for the past three years and had a mentor for the minor from his own Tribe. CDSS strongly recommended adoption as the permanent plan for the minor.
The ICWA expert, Sean Osborn, submitted a declaration stating that he had reviewed a letter from the tribal chairperson which stated that if the minor were adopted he would not lose his status as a member of the Tribe. Osborn described the minor's placement and attachment to his caretakers. He noted TCA had been proposed at one point by the tribal representative but no action to bring the permanent plan to fruition had occurred and it was no longer a viable alternative. Based upon his review of the reports and statements from the social worker, Osborn concluded that the minor would be at risk of serious emotional or physical damage if returned to mother's care, in part due to the potential for relapse if mother had the additional stress of caring for the minor as well as the sibling she currently had in her care. He stated that it was in the minor's best interests to be adopted by his current caretakers and it would be emotionally traumatic for him to be removed from their care.
An updated caretaker information form stated that recent visits between the minor and mother had gone well, although the minor was somewhat withdrawn prior to visits and always fell into a deep sleep following visits. The caretakers continued to be committed to development of the minor's Native American heritage both generally and as a member of the Tribe. Although some attempt had been made to contact the representative of the minor's specific band within the Tribe, there appeared to be some tension which led to the caretakers feeling unwelcome to bring the minor to visit the reservation. However, they intended to take the minor when he was older and better able to participate in events.
A psychological report by Dr. Siggins in February 2012 assessed the quality of the bond between the minor and his caretakers. In addition to reviewing records in the case, the psychologist also observed the caretakers and the minor interact in their home. He opined that the minor was in the third state of bonding with the caretakers and creating the foundation for his own moral development. He concluded that any significant disturbance in the bond was not in the minor's best interest and would likely result in a detriment to the minor's sound psychological and social development.
The Tribe requested an assessment by a clinical psychologist, Dr. Martinez, who addressed the specific question of whether the minor would be harmed by a return to mother's care. Dr. Martinez found no evidence of serious harm to the minor if returned to mother and no indication that continued custody by her would likely result in serious emotional or physical harm to the child. He recommended a renewal of reunification services with an increase in visits and less supervision.
The hearing on the petition for modification began in March 2012. Dr. Martinez testified in accordance with his report. He said mother should be offered additional services and that currently there were no conditions endemic to mother or her home which would provide a risk of serious harm to the minor. He did not evaluate what would be in the best interests of the minor because he was only asked to address the recommendations for a permanent plan for the minor. Accordingly, he did not evaluate either the minor or the minor's interaction with mother and had no opinion on whether it was in the minor's best interest to return to mother. Because of the limitations on Dr. Martinez's report, the court did not accept his report as evidence on the petition for modification.
Mother testified about her current circumstances, including her ongoing therapy, bible studies, participation in 12-step and recovery groups, home health parenting and Native American activities. Mother also testified about her current stability and ongoing care of the minor's sibling who was placed with her. She believed that it was in the minor's best interests to be with family because he belonged with her and she had changed. Mother felt that they deserved a chance to be together and was concerned he was not participating in tribal activities. She acknowledged that she had not participated in Pit River tribal activities in two years but had attended more general Native American activities.
Dr. Siggins also testified in accordance with his report. After observing the minor in the caretaker's home, he concluded the minor was securely attached to the caretakers, the bonds were strong and removal and returning the minor to mother would be devastating to the minor and result in serious emotional harm to him. In his opinion, there would be both an immediate and a future impact on the minor if removed from the current caretakers. Observing visits would not change his opinion as he assumed the minor's reaction to mother in visits would be positive due to his secure attachment to his caretakers.
The social worker testified mother had monthly visits. Visits were generally good and the minor was happy to see his mother and sibling but was usually ready for the visits to end. The social worker was informed that the minor's visits with the state adoptions worker were similar to those with mother and the minor was also happy to see the adoptions worker. The social worker had reports that the minor was subdued before visits and, after visits with mother, was very tired and slept in the car on the way home, sometimes waking up screaming. In the social worker's opinion, it was in the minor's best interests to remain with the current caretakers rather than have further reunification efforts with mother.
One of the caretakers testified, describing the minor's behavior before visits as subdued and stating that after visits the minor would sleep up to four hours. She further testified that Native American heritage was a great part of the caretakers' lives because of their professions as academics in Native American studies and having lived on the Navajo reservation. They attended numerous local and regional events. They traveled widely to other indigenous communities and the minor went with them. They worked with people about attending intertribal events and had strong relationships with a nearby Wintun tribe. The minor had attended several events in the Feather River and Colusa area. One of their friends was a member of the Tribe, although in a different band from the minor, and has acted as a mentor for the minor involving him in songs and drumming. The caretakers had not felt welcome to take the minor to the tribal area but hoped ...