California Court of Appeals, Second District, Fifth Division
In re Alexandria P., a Person Coming Under the Juvenile Court Law. LOS ANGELES COUNTY DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent,
J.E., Defendant and Respondent R.P., et al., Objectors and Appellants; Choctaw Tribe of Oklahoma, Intervener and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, No. CK58667 Amy M. Pellman, Judge.
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Quinn Emanuel Urquhart & Sullivan, Lori Alvino McGill; Latham & Watkins, Pamela S. Palmer, Stephanie N. Grace and Ming M. Zhu, for Objectors and Appellants.
Covington & Burling, Mark W. Mosier, David Schraub and Richard A. Jones, for Professor Joan Hollinger, Northern California Association of Counsel for Children, and AdvoKids as amici curiae on behalf of Objectors and Appellants.
John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel, and Kim Nemoy, Deputy County Counsel, for Plaintiff and Respondent.
Law Offices of Joanne Willis Newton and Joanne Willis Newton, under appointment by the Court of Appeal, for Defendant and Respondent.
Christopher Blake, under appointment by the Court of Appeal, for minor Alexandria P.
Melissa L. Middleton for Intervener and Respondent.
This case involves the placement preferences set forth in the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). At issue is whether the dependency court properly applied the ICWA in finding that the foster parents of an Indian child failed to prove good cause to deviate from the ICWA’s adoptive placement preferences.
A 17-month-old Indian child was removed from the custody of her mother, who has a lengthy substance abuse problem and has lost custody of at least six other children, and her father, who has an extensive criminal history and has lost custody of one other child. The girl’s father is an enrolled member of an Indian tribe, and the girl is considered an Indian child under the ICWA. The tribe consented to the girl’s placement with a non-Indian foster family to facilitate efforts to reunify the girl with her father. The girl lived in two foster homes before she was placed with de facto parents at the age of two. She bonded with the family and has thrived for the past two and a half years.
After reunification efforts failed, the father, the tribe, and the Los Angeles County Department of Children and Family Services (Department) recommended that the girl be placed in Utah with a non-Indian couple who are extended family of the father. The de facto parents (de facto parents) argued good cause existed to depart from the ICWA’s adoptive placement preferences and it was in the girl’s best interests to remain with the de facto family.
The child’s court-appointed counsel argued that good cause did not exist. The court ordered the girl placed with the extended family in Utah after finding that de facto parents had not proven by clear and convincing evidence that it was a certainty the child would suffer emotional harm by the transfer.
De facto parents appeal from the placement order, raising constitutional challenges to the ICWA, which we hold they lack standing to assert. De facto parents also contend that the ICWA’s adoptive placement preferences do not apply when the tribe has consented to a child’s placement outside of the ICWA’s foster care placement preferences. We disagree with their interpretation of the statutory language. De facto parents further contend the court erroneously applied the clear and convincing standard of proof, rather than preponderance of the evidence, a contention we reject based upon the overwhelming authority on the issue. Finally, de facto parents contend the court erroneously interpreted the good cause exception to the ICWA’s adoptive placement preferences as requiring proof of a certainty that the child would suffer emotional harm if placed with the Utah couple, and failed to consider the bond between Alexancria P. and her foster family, the risk of detriment if that bond was broken, and Alexandria’s best interests. We agree with this last contention and reverse the placement order because the court’s error was prejudicial.
For clarity, we set forth the parties before turning to the facts and procedural history. The Indian child’s name is Alexandria. De facto parents, Rusty and Summer P., are appellants seeking to reverse the placement order. The P.s are supported by amici curiae Joan Hollinger, Northern California Association of Counsel for Children, and Advokids, which filed a joint brief in support of reversal. Alexandria argues we should affirm the order directing her pre-adoptive placement with Ginger and Ken R., her extended family in Utah. Alexandria’s father, the Department, and the Choctaw Nation of Oklahoma (tribe) have all filed briefs in support of affirmance as well.
Alexandria’s Family Background
Alexandria’s mother is not Indian, has a history of substance abuse, including methamphetamine abuse, and lost custody of at least six other children before Alexandria was born. Alexandria’s father, an enrolled member of the tribe,  has a history of substance abuse and an extensive
criminal history. He lost custody of Alexandria’s older half-sister, Anna, an enrolled member of the tribe who currently lives in Los Angles with her paternal step-grandfather, her adoptive parent. Alexandria is 1/64th Choctaw and meets the statutory definition of an Indian child.
Alexandria’s Child Welfare History
Alexandria was detained from her parents and placed with a foster family when she was 17 months old, based on concerns about her parents’ ability to care for her in light of their histories of substance abuse, child welfare referrals, and criminal activity. Alexandria reportedly was moved to a different foster family after suffering a black eye and a scrape on the side of her face. The P.s were Alexandria’s third foster care placement, initially arranged in December 2011 as a “respite care” placement that evolved into a long-term foster care placement. The P.s were aware that Alexandria was an Indian child and her placement was subject to the ICWA.
By the time Alexandria was placed with the P.s in December 2011, her extended family in Utah, the R.s, were aware of dependency proceedings and had spoken to representatives of the tribe about their interest in adopting Alexandria. The tribe agreed to initial foster placement with the P.s because it was close to father at a time when he was working on reunification. If reunification services were terminated, the tribe recommended placement with the R.s in Utah.
Alexandria’s Emotional Health
Alexandria’s first months after being placed with the P.s were difficult. She was weepy at times, did not want to be held, and had difficulty differentiating between strangers and caregivers, indiscriminately calling people “mommy” or “daddy.” These behaviors were considered signs of a “reactive attachment, the disinhibitive type.” The P.s addressed Alexandria’s attachment issues with consistency and loving care. They did not ask the social worker for a therapy referral, understanding the issues to be ones they could work out on their own. After a few months, Alexandria’s behavioral issues resolved, and she formed a strong primary bond and attachment with the entire P. family, viewing the parents as her own parents and the P. children as her siblings.
On September 17, 2012, Alexandria began play therapy with Ruth Polcino, a therapist with United American Indian Involvement. Sessions took place weekly in the P. home. In a December 31, 2012 letter to the Department’s social worker Roberta Javier, Polcino noted Alexandria’s “happiness, playfulness, sense of safety, and positive rapport with her foster parents and siblings” and concluded that her consistent, loving experience in the foster home appears to have fostered a healthy and secure attachment. Notably, the letter concludes “Based on witnessing Alexandria in the [P.s’] household, and based on her history of repeated separation from caretakers, this therapist highly recommends that Alexandria be allowed to stay in touch with the [P.] family, even after she is placed with her Aunt [Ginger R.] in Utah. This recommendation is not intended to interfere with the current adoption, but rather to allow Alexandria to stay in touch with the [P.] family as extended family who care about her.”
An April 3, 2013 report notes the significant advancements made by Alexandria during her placement with the P.s, as well as her ability to form a healthy attachment to new caretakers: “Alexandria’s ability to re-attach to a new caretaker is stronger because of the stability that the [P.] family has provided for her. The behaviors that she presented with initially when placed with the [P.] family were much more indicative of a possible attachment disorder (i.e., the indiscriminate attachment she demonstrated with strangers). Since then, these behaviors have been almost entirely extinguished. In their place are more appropriate behaviors that are evidence of a more healthy and secure attachment....”
Father’s Reunification Efforts
Father successfully complied with reunification services for more than six months, progressing to such an extent that he was granted unmonitored eight-hour visits. By June 2012, the Department reported a substantial probability he would reunify with Alexandria within the next six months. Shortly thereafter, however, father’s emotional state deteriorated dramatically. He separated from his new wife, left California, and did not visit Alexandria after July 28, 2012. By September 2012, he had communicated to the Department that he no longer wished to continue reunification services.
The R. Family
Because Ginger R.’s uncle is Alexandria’s paternal step-grandfather, the tribe recognizes the R.s as Alexandria’s extended family. The R.s have an ongoing relationship with Alexandria’s half-sister, Anna, who visits the R.s on holidays and for a week or two during the summer. Anna and Alexandria have the same paternal grandmother (who has since passed away) and step-grandfather,
and the step-grandfather has designated the R.s to care for Anna if he should become unable to care for Anna.
The R.s expressed their interest in adopting Alexandria as early as October 2011. They were initially told that to avoid confusing Alexandria, they should not contact her while father attempted to reunify. If reunification efforts failed, they were the tribe’s first choice for adoption. The family has approval for Alexandria to be placed with them under the Interstate Compact on the Placement of Children (ICPC; Fam. Code, § 7900 et seq.). The R.s first visited Alexandria shortly after the court terminated father’s reunification services. Since then, they video chat with Alexandria about twice a week and have had multiple in-person visits in Los Angeles. The P.s refer to the R.s as family from Utah. At one point, when Alexandria asked if she was going to Utah, the P.s responded that they did not know for sure, but it was possible. Russell and Summer P. testified that before and following a recent visit by the R.s, most likely in June 2013, Alexandria was upset and said she did not want to visit with the R.s and did not like it when they came to visit. Russell P. acknowledged that the change in Alexandria’s feelings coincided with the birth of a new baby in the P. family and a transition to a new therapist for Alexandria.
The P. Family
Alexandria has lived with the P.s for over two and a half years, beginning in December 2011. By all accounts, they have provided her with clear and consistent rules, and a loving environment. Alexandria is bonded to the P.s, and has a healthy attachment to them. The Department consistently reminded the P.s that Alexandria is an Indian child subject to the ICWA placement preferences. At some point after father’s reunification efforts failed, the P.s decided they wanted to adopt Alexandria. They discussed the issue with the Department social worker, who advised them that the tribe had selected the R.s as the planned adoptive placement.
As ordered by the court on April 12, 2013, the Department arranged a conference call to discuss a transition plan in anticipation of a possible court order directing placement with the R.s. The call lasted 90 minutes and included the P.s in Los Angeles; the R.s from Utah; Ruth Polcino, Alexandria’s therapist at United American Indian Involvement; Polcino’s supervisor, Jennifer Lingenfelter; Alexandria’s attorney, Kerri Anderson; and Department social worker Roberta Javier, as well as two other Department employees. The participants agreed on a transition plan that involved a relatively short transition, with both families meeting for breakfast or at a
park, explaining to Alexandria that she would be going to live with the R.s, who are family who love Alexandria very much and would take good care of her. The P.s would reassure Alexandria that they love her and would always be a part of her family.
The Department filed a petition in this matter on April 25, 2011, alleging that Alexandria was at risk of physical harm due to her parents’ history of substance abuse. The court appointed counsel for Alexandria and father, ordered reunification services for father, and later found father to be Alexandria’s biological father based on DNA test results.
On August 30, 2011, the court found that the ICWA applies and the matter was transferred to a specialized department for ICWA cases, with Commissioner Sheri Sobel presiding. On November 3, 2011, the Department filed a Last Minute Information attaching the tribe’s Notice of Intervention, which the court acknowledged and filed the same day. A later Last Minute Information filed by the Department attached a declaration of a tribal social ...