Opinion
G056270
12-17-2018
In re H.D., a Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. N.S., Defendant and Appellant.
Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 17DP0639) OPINION Appeal from a postjudgment orders of the Superior Court of Orange County, Gary L. Moorhead, Judge. Affirmed. Brent Riggs, under appointment by the Court of Appeal, for Defendant and Appellant. Leon J. Page, County Counsel, Karen L. Christensen and Jeannie Su, Deputy County Counsel, for Plaintiff and Respondent.
Mother appeals from an order at a Welfare and Institutions Code section 366.26 hearing (.26 hearing) terminating her parental rights and selecting adoption as the permanent plan. She contends the court erred in three ways.
All statutory references are to the Welfare & Institutions Code.
First, she contends she had stipulated to a dispositional order denying her reunification services on the condition that she be granted a drug patch. The drug patch was ordered, but the referral form did not check a particular box indicating it was funded. Nonetheless, the patch was authorized, and mother never attempted to have it applied. We conclude she forfeited her right to a drug patch. Even assuming the patch was inadvertently unfunded, funding was clearly authorized, and mother could have resolved that problem early in the case.
Second, mother contends the evidence established the parent-bond exception to adoption as a matter of law. We conclude substantial evidence supports the court's conclusion that the exception did not apply.
Third, mother contends the Indian Child Welfare Act (25 U.S.C. § 1901 et seq; ICWA) procedures were not followed. However, she did not raise this objection in the trial court, and we hold it was also forfeited. Accordingly, we affirm the postjudgment orders.
FACTS
In June 2017, H.D., age 3, was taken into protective custody. The Orange County Social Servies Agency (SSA) filed a petition under section 300, subdivisions (b)(1) (failure to protect), (g) (incarcerated/no provision for support), and (j) (sibling abuse/neglect). It alleged as follows:
B-1, mother left H.D. in the care of the maternal grandmother, who had previously failed to protect H.D.'s sister by allowing mother unlimited access to the sister. Mother was aware that H.D. was in maternal grandmother's care, but refused to provide child protective services that information in violation of a court order.
B-2, mother may have an unresolved problem with substance abuse. She has a history of multiple convictions and/or arrests for substance abuse related offenses. In sister's dependency case, the Riverside County Juvenile Court found that mother abused controlled substances and had an extensive history of doing so.
B-3, mother had a domestic-violence history. The Riverside court found that she engaged in domestic violence, placing the sister at risk.
B-4, father had a domestic-violence history including convictions or arrests for related offenses.
B-5, mother had a history of possibly unresolved mental-health issues; she was diagnosed with bipolar disorder, and the Riverside court had found that she did have such unresolved issues and was not taking her prescribed medication.
B-6, Mother had a criminal history for a variety of offenses;
B-7, so did father.
B-8, Mother was incarcerated and not available to care for H.D.; and,
B-9, so was father.
Under section 300, subdivision (g), the petition alleged that both parents were incarcerated and unavailable to care for the child.
Under section 300, subdivision (j), the petition alleged H.D.'s sister was the subject of a dependency petition in Riverside, which was sustained, involving various allegations of drug abuse, neglect, and mental health problems. Reunification services had been terminated in that case.
At the detention hearing, the court detained H.D. and ordered reunification services. Mother was in jail at the time and was expecting to be released later in the month. The court authorized a minimum of six hours per week monitored visitation upon her release.
The following month, in anticipation of the jurisdiction/disposition hearing, SSA prepared a report recommending that mother not be offered reunification services on the ground that mother had previously failed to reunify with H.D.'s sister. (See § 361.5, subd. (b)(10).) In an interview with the social worker, mother acknowledged several different mental health diagnoses stemming from post-traumatic stress disorder (PTSD). She reported her PTSD was caused by an incident in which father broke into her house, held her hostage, and almost killed her. Mother was supposed to be released from custody in June 2017, but she violated her probation by contacting the maternal grandmother from jail and instructing her to hide H.D. from SSA.
H.D. had spent the previous year and a half bouncing back and forth between mother, maternal grandmother, father, and paternal grandmother. At the time of the report, H.D. had been placed with the paternal grandmother. In the paternal grandmother's care, the social worker observed H.D. to be happy, healthy, clean, well dressed, talkative, and polite. H.D. appeared to be "very comfortable in the paternal grandmother's care." Mother, however, described the paternal grandmother as a "monster," claiming she had previously interfered with mother's visitation rights and falsely told H.D. mother had either disappeared or died.
Prior to the jurisdictional hearing, mother produced documentation that, in connection with her previous dependency case, she had completed 24 sessions of an anger management class and 24 sessions of a parenting class. Mother received positive reviews in both. Mother's probation officer reported that her probation violation hearing was continued to permit mother to undergo an Evidence Code section 460 evaluation to determine if she was fit to stand trial.
Mother was finally released from jail on September 15, 2017. She arranged a phone call with H.D. shortly afterwards. The paternal grandmother reported the child was mostly silent on the call, and afterwards H.D. started crying, hugged the grandmother's leg, and said, "I am never going to let you go."
On September 26, 2017, mother had her first visit with H.D. When the child arrived, mother held out her arms and H.D. ran to her and gave her a hug. Unprompted during the visit, the child gave mother a hug and stated, "I love you . . . you're the best mom ever." At the end of the visit H.D. wrapped her legs around mother and would not let her go. When the social worker told H.D. she would see mother again soon, she let go, went to the paternal grandmother and gave her a hug.
The paternal grandmother later reported that, after the visit, H.D. yelled at her three times, which was abnormal. H.D. also wet the bed that night, which itself was abnormal, especially because she was awake when she did it.
Subsequent visits were observed to be appropriately playful and affectionate. However, the paternal grandmother continued reporting abnormal behavior following the visits, including, for example, H.D. hitting her bed, crying a lot, acting clingy, extensive night terrors, and wetting the bed.
On September 27, 2017, SSA submitted a referral for the mother to begin random urine drug testing. Mother confirmed she received the referral on October 3, 2017. She then missed her first tests on October 10 and 11, 2017. Around the same time, SSA provided mother a resource list for in-patient and out-patient substance abuse treatment programs in Orange County, and mother enrolled in a child abuser counseling program.
After multiple continuances, the jurisdictional hearing finally took place in late October 2017. Mother pleaded nolo contendere. At the same time, the petition was interlineated as follows:
B-1, the following was added: "The mother denies that the maternal grandmother allowed unlimited access to [H.D.'s sister]. The mother reported that the father . . . took H.D. from the maternal grandmother."
B-2, the language "The mother is incarcerated" was stricken, and the following added: "The mother reports that she started an outpatient program in Fresno, California and is waiting to transfer her outpatient program to Orange County."
B-3, the following language was added: "The mother reports that she has never been criminally prosecuted with any crime of domestic violence."
B-5, the following language was added: "The mother reports that she was only diagnosed in September 2016 and is currently taking her prescribed medication."
B-8 was stricken.
G-1 was stricken.
The court found the amended petition to be true. It set a contested dispositional hearing.
Mother missed her drug tests on October 10, 11, 17, and 19, and tested negative on October 24, 2017.
The "contested" dispositional hearing in November 2017 was resolved by a stipulation that H.D. be declared a dependent of the court, that custody of H.D. be vested with SSA, and that the court adopt SSA's case plan dated August 29, 2017, with one amendment: "[C]ourt orders mother to drug test via the patch, rather than random urine testing. [The] court authorizes funds for patch testing." We do not have a copy of the case plan dated August 29, 2017, in our record. However, the prior case plan had proposed no reunification services for mother, and an addendum report dated August 29, 2017, maintained that recommendation. The court set a .26 hearing for March 5, 2018.
Between the dispositional hearing and January 2018, H.D. saw a therapist for approximately 11 or 12 sessions. The therapist reported that she could see the effect on H.D. of visits with mother. According to the social worker's report, the therapist reported "the child had finally opened up and was beginning to share more, [though] initially the child would not talk at all about her mother. [The therapist] reported that the child seems to want to connect with her mother, so she won't tell her mother 'no' even though the child indicates that sometimes during the visits she doesn't want to go along with what the mother is doing or saying." The therapy sessions ended in February 2018, as the goals of the therapy had been met. Afterward, the therapist e-mailed the social worker, stating, "When I asked [H.D.] about the visits [with mother], she shared she did not always like what they did, such as the gold tattoos, but that she just does what Bio Mom wants. When I asked her what she does or says when they do something she does not like or want to do, she shared again she just does what Bio Mom wants." "When asked, [H.D.] shared she does not have an interest in more time or visits with Bio Mom. She also shared it's okay if she misses a visit or does not have as much time with her." "[Paternal Grandmother] was great and more so than many parents and caregivers, try[ing] the suggested interventions at home to help with the night terrors, which as I shared she felt they had improved."
The paternal grandmother reported that H.D. continued to have night terrors. After one visit in January, H.D. came home covered in vomit, having thrown up after drinking apparently spoiled milk mother had given her. H.D. made various comments after visits, such as, "Visits are kind of boring"; "My Mom says lies on visits"; "she just lies and lies"; "I'm afraid I'm gonna dream about my Mom"; and "I don't like my real Mom." H.D. also reported that mother expressed a desire to sneak H.D. out of the visitation area. Once in February 2018, when H.D. was told it was visitation time, she said, "I don't want to go." She came back from another visit, stating to her paternal grandmother, "My Real Mom said you are part of the mean team, that's not true. She said she was fighting for me to live with her. I don't want to."
Between the dispositional hearing and the .26 hearing, mother continued to visit consistently with H.D. twice weekly, for three hours each. According to summaries from the monitors, "the visits are typically fun and filled with play and activities directed by the child's mother."
In view of the foregoing, SSA recommended that mother's parental rights be terminated, and assessed H.D. as both generally and specifically adoptable, her paternal grandmother having expressed a desire to adopt. The social worker analyzed the case as follows: "The child's mother appears to have done an admirable job in consistently visiting with the child and attempting to make these visits fun and lighthearted. The undersigned does believe that the child's mother loves the child. The undersigned is certainly sensitive to the child's mother's mental health needs and life circumstances. However, the child's mother has not reached out to engage with the undersigned as to the child's case, nor thoughtfully participated in any type of services or resources which might begin to address the various needs previously mentioned. The undersigned notes that the child's seeming behavioral and emotional needs appear to be related to her visits with her mother, especially when the chlid's therapist's feedback is considered. While on the surface, the visitation notes appear mostly appropriate and indicative of fun and lighthearted visitation," "it appears to the undersigned that the child, this four-year-old little girl, seems to be struggling to make sense of what she gets from mother during their twice weekly visits and how that fits in with what she gets from her paternal grandmother in terms [of] day to day stability and functioning."
In February 2018, SSA received information that H.D.'s father is a registered member of the Paiute Tribe. As a result, the court found the ICWA applies, and continued the .26 hearing approximately one month to early April, 2018.
On March 21, 2018, mother filed her first of two petitions to change the court's order pursuant to section 388 (388 petition). Specifically, she sought to change the court's order setting a .26 hearing on the ground that the social worker "refused to comply with the stipulation to fund Drug Patch testing and consequently to provide services to the 366.26 hearing." She sought to have the .26 hearing continued for 120 days and to obtain an order that SSA fund the drug patch and provide services to mother "as initially bargained for on November 6, 2017."
The evidence in support of the petition was a drug patch referral form filled out by a social worker that failed to check the box stating, "[Senior social worker] certifies that the current court order specifies that the court is authorizing funding for drug testing services/Drug Patch." The referral was approved on November 15, 2017.
In response, SSA filed an addendum report setting forth the timeline as to mother's drug patch testing. According to the report, on November 16, 2017, a social worker contacted mother and provided her the drug patch testing particulars, including the site location and the phone number to call to arrange to have the patch applied. As of January 10, 2018, in preparation for a visit with mother, the assigned social worker checked with the drug testing company, who reported mother had no results. "No concerns were noted as it pertains to the funding of the drug patch referral, rather, the drug patch referral was in effect, since November 2017, and ready to be utilized." SSA also submitted a declaration from an administrative manager who personally submitted the referral for the drug patch and testified that it was, in fact, funded. She further testified that in any case where the court authorizes a drug patch, it is funded automatically. She explained the distinction between the court ordering funding and authorizing funding as follows: "If the juvenile court only 'authorizes funding' for drug patch testing, a referral for drug patch testing can be denied by SSA supervisors and program managers." Accordingly, she testified the referral form was filled out correctly.
The court held a combined hearing on the 388 petition and .26 hearing on April 2, 2018. At the outset of the hearing, deputy county counsel represented she had spoken with the representative of the Paiute Tribe who said she did not want to be present at the hearing and agreed with SSA's recommendation to terminate parental rights and leave H.D. in the care of the paternal grandmother.
The parties then moved to argument on a subpoena mother's counsel had served on the initial social worker assigned to the case. Mother's counsel had served the SSA custodian of records for the social worker's appearance at the hearing, but was told the social worker was out on medical leave and would not be attending, but her supervisor would attend in her stead. This was unacceptable to mother's counsel, but the court refused to issue an order to show cause.
The court then held argument on whether mother had made a prima facie case in her 388 petition to warrant a full evidentiary hearing. The court ruled mother had not. The court noted mother had not produced any evidence that she actually attempted to have the patch applied. The court also concluded that continuing the matter for 120 days would not be in the best interests of the child. The court continued the .26 hearing until April 16, 2018.
On April 13, 2018, mother filed her second 388 petition. The second 388 petition also sought to change the order setting a .26 hearing, this time on the grounds that "Mother has enrolled in Telecare's FSP Homeless Program and has completed at least 21 sessions of child abuse counseling at C.A.R.E. Counseling Center."
At the combined hearing on mother's second 388 petition and .26 hearing, the court denied the 388 petition. It concluded that mother was, at best, changing her circumstances, but had not shown changed circumstances. Moreover, the court found it would not be in the best interests of H.D.
Moving on to the .26 hearing, the social worker testified she had observed interactions between H.D. and paternal grandmother approximately five times, and she described those interactions as "Loving interactions of a grandmother and her granddaughter, playing together, getting ready for dinner, cleaning up the house, they relate to each other as family. [H.D.] appears happy and comfortable and responds well to grandmother. Sometimes she needs a second prompt as many kids do, but lots of love." The social worker reported paternal grandmother is "willing and eager" to adopt H.D. When asked if she was concerned about the father potentially returning to the paternal grandmother's house, she replied, "No. I'm confident that the paternal grandmother will do her job . . . as the adoptive parent, . . . and protect her and make strong boundaries and keep[ H.D.'s] safety above everything else."
Mother testified that during visitations H.D. would "beg for me to come home." "She would always state that she wanted more visits with me, and that she would love to be able to call me every day. On days that she was told that visit was canceled, she would tell me she wasn't sick, that she missed me very much that day and wanted me to call. She would state to me that she was not allowed to talk about me, and she would be put in trouble or put in time out if she mentioned mommy." "From the moment our visit starts when she runs to me with open arms, she never lets go. She refuses to let me even get her off my lap." "Even from the table to the bathroom, she wants me to hold her in the bathroom. She wants me to hold her, carry her back every visit." She testified that on the occasions she had a scheduled phone call with H.D., the paternal grandmother would not answer the phone. Mother expressed a fear that H.D., if placed with the paternal grandmother, would be in danger from the father. When asked about the notes from H.D.'s therapist, mother testified that H.D. told her "she's not allowed to express that she wants to come home with me, that her grandmother continuously tells her what to say in regards to when it comes to visitation with me or coming home with me. She has even said that she gets in trouble and punished for saying things like that, and that she was really sorry, that she was scared to tell the truth."
During the hearing, a representative from the Paiute Tribe appeared telephonically. When asked if she waived her right to appear at the hearing, she replied, "Yes, that is correct, your honor. I have visited with both the potential adoptive mother . . . . I've also visited with the biological father, listened to both of them, read the recommendations of the social services agency. At this time the tribe does support kin-gap adoption with the [paternal] grandmother, . . . and that is the father's wishes, and it seems to be the best placement for this child and best interest of the child at this time."
At the conclusion of the hearing, the court found H.D. to be both generally and specifically adoptable. The court concluded that terminating visitation would not harm the child, and that maintaining visitation would not substantially benefit the child. The court addressed the conflict in the evidence regarding mother's testimony that H.D. was coerced to say bad things about her to the therapist: "So I'm weighing the evidence in that regard, and given the testimony of the therapist in those reports, it seems incredible to me that this four-year-old girl would be making up all of those statements that she makes to the therapist in regard to her desire to have more visits with the mother or insists upon not making up any missed visits. [¶] I just don't believe that that four-year-old child is coaxed and threatened by a paternal grandmother to make those statements and afraid if she doesn't make statements that she's going to get in trouble by the grandmother. I don't find that testimony credible. And on the reverse side, I do find that combining the therapist's testimony with the paternal grandmother's statements as to the child's reactions after the visits, that there is not any benefit to the child to preserving the parent-child relationship." The court then ordered parental rights terminated and adoption as the permanent plan. Mother appealed.
DISCUSSION
Mother raises three arguments on appeal. First, she contends the denial of her 388 petitions violated her due process rights because her stipulation at the disposition hearing was tantamount to a plea bargain where the government did not give her what she bargained for—drug patch testing. Second, she contends the evidence established the parental-bond exception to adoption as a matter of law. Third, she contends the court erred in failing to follow the correct procedures under ICWA.
The 388 Petitions
A parent may petition the court to modify a prior order by demonstrating that a change of circumstances or new evidence may require a new order, and that changing the prior order would be in the best interests of the child. (§ 388, subd. (a)(1), (d); In re Kimberly F. (1997) 56 Cal.App.4th 519, 529.) To meet the "best interests" prong after reunification services have been terminated, a parent's petition to reopen reunification efforts must establish how such a change will advance the child's need for permanency and stability. (In re J.C. (2014) 226 Cal.App.4th 503, 527.)
The party seeking modification of an order must "make a prima facie showing to trigger the right to proceed by way of a full hearing." (In re Marilyn H. (1993) 5 Cal.4th 295, 310.) In assessing whether a petitioner has met this burden, we liberally construe the allegations in the petition. (Id. at p. 309; In re Anthony W (2001) 87 Cal.App.4th 246, 250-252.) A 388 petition must be verified. (§ 388, subd. (a)(i).)
The summary denial of a 388 petition is reviewed for abuse of discretion. (In re Daniel C. (2006) 141 Cal.App.4th 1438, 1445.)
The first petition alleged mother agreed to stipulate to a "soft" .26 hearing, which apparently means she stipulated to jurisdiction and not receiving formal reunification services in exchange for the interlineated amendments to the petition and a promise to receive drug patch testing. She further alleged that the drug patch was ordered, but not funded, based on the referral form, which contains a checkbox certifying that the court authorized funding, but which was not checked. In response, SSA provided evidence that the patch was, in fact, funded, because all approved drug patches are funded automatically.
Mother contends that the failure to fund the drug patch denied her due process rights, analogizing the case to a plea bargain. In a plea bargain, "When either the prosecution or the defendant is deprived of benefits for which it has bargained, corresponding relief will lie from concessions made." (People v. Collins (1978) 21 Cal.3d 208, 214.) Either side may move to vacate a judgment when the other has breached the agreement. (People v. Collins (1996) 45 Cal.App.4th 849, 863.)
Mother forfeited her right to the drug patch because she never attempted to obtain the patch. Even if we liberally construe the allegations and assume the patch was not funded, presumably that issue could have been sorted out in short order if she had tried to obtain the patch. If she had brought this issue to the attention of SSA or the court when the patch was authorized in November 2017, she would have received what she bargained for in a timely fashion. The court had clearly authorized funding. Instead, she sat on her rights for six months until the last minute and filed a petition that would unnecessarily delay H.D.'s need for permanency and stability. Accordingly, she forfeited any right she had to obtain a drug patch.
Mother's counsel represented at the hearing, "My understanding is my client attempted to get the patch put on and was given a bill so that she did not . . . ." This allegation, however, was not made in the petition. The allegations in the petition must be verified. (§ 388, subd. (a)(1).) "[T]he mandate requiring courts to give a liberal construction to a section 388 petition does not authorize a petitioner to avoid describing the purported changed circumstances or new evidence. Section 388 and the pertinent rule of court [citation] require that the petition itself demonstrate that the prior order should be altered." (In re Edward H. (1996) 43 Cal.App.4th 584, 593; see Cal. Rules of Court, rule 5.570.) This requirement serves the purpose of ensuring that any delay to H.D. in obtaining permanency and stability is grounded in the prospect of admissible evidence, not a vague, unsworn "understanding." (See In re Marilyn H. (1993) 5 Cal.4th 295, 310 ["The Legislature . . . has provided safeguards, through section 388, that require more than a last-minute oral attempt by a parent to delay permanency for a child who has already spent as much as 22 months in out-of-home placement"].) --------
Mother also contends the court erred in denying her second 388 petition. The facts alleged in the second petition were that she had completed a child-abuse counseling course, and had enrolled in a mental-health program for the homeless. The court denied the petition, finding mother had not made a prima facie case warranting a hearing. We see no abuse of discretion in that ruling. Even if the evidence had substantiated the claim that mother completed that course, and had newly enrolled in a mental-health program, the court could find that was not a sufficient change in circumstances to significantly alter its analysis of H.D.'s best interests, particularly given mother's unresolved substance abuse problem and the psychological toll of H.D.'s visits with mother.
The Parental-bond Exception to Adoption
Next, mother contends the evidence compelled the court to find that mother satisfied the parental-bond exception to adoption. She relies on the evidence that mother visited consistently and the visits were positive, with H.D. and mother showing affection for each other. We conclude substantial evidence supports the court's ruling.
Upon the termination of reunification services, the statutorily preferred consequence is that the court will terminate parental rights and order adoption, unless one of several exceptions applies. (§ 366.26, subd. (b)(1), (c)(1).) The parental-bond exception applies where "[t]he court finds a compelling reason for determining that termination would be detrimental to the child due to one or more of the following circumstances: [¶] (i) The parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship." (§ 366.26, subd. (c)(1)(B)(i).) "The exception . . . must be considered in view of the legislative preference for adoption when reunification efforts have failed. [Citation.] So viewed, the exception does not permit a parent who has failed to reunify with an adoptable child to derail an adoption merely by showing the child would derive some benefit from continuing a relationship maintained during periods of visitation with the parent." (In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1348.) Instead, to invoke this exception the parent has the burden to show that "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents. In other words, the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging that a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (In re Autumn H. (1994) 27 Cal.App.4th 567, 575.)
We review the record to determine whether there is substantial evidence supporting the juvenile court's findings of fact as to the existence of a beneficial parental relationship. (In re Bailey J. (2010) 189 Cal.App.4th 1308, 1314; In re J.C., supra, 226 Cal.App.4th at p. 530.) But we review the determination of whether the relationship constitutes a compelling reason to avoid adoption for abuse of discretion. (In re Bailey J., at p. 1315; In re J.C., at pp. 530-531.)
Here, substantial evidence supports the conclusion that H.D. did not have a strong bond with mother. Notwithstanding the positive notes from observers at visitations, H.D.'s therapist reported that H.D. was not strongly bonded to mother, and the paternal grandmother provided extensive evidence of the negative effects visitation was having on H.D., as well as H.D.'s ambivalence about attending visitations. The court expressly credited the therapist's testimony over mother's testimony concerning the alleged deep bond they shared. We, of course, must resolve that conflict in favor of the court's ruling. Given that resolution of the facts, it clearly was not an abuse of discretion to find that maintaining the benefits of a permanent and stable home outweighed an ambivalent relationship between mother and daughter.
ICWA Procedures
Under California law implementing the ICWA, a court may terminate parental rights over an Indian child only if it determines beyond a reasonable doubt, based on the testimony of a "qualified expert witness," that "continued custody of the child by the parent is likely to result in serious emotional or physical damage to the child." (§ 366.26, subd. (c)(2)(B)(ii).) The "qualified expert witness" cannot be a representative of the agency recommending adoption, so the assigned social worker does not qualify. (§ 224.6, subd. (a).) Here, the court made the required statutory finding, but there was no qualified expert witness to support it. Mother contends the court, therefore, had no authority to terminate parental rights.
We conclude Mother forfeited this objection by failing to raise it at the trial court. "As a general rule, a party is precluded from urging on appeal any point not raised in the trial court. [Citation.] Any other rule would '"'permit a party to play fast and loose with the administration of justice by deliberately standing by without making an objection of which he is aware and thereby permitting the proceedings to go to a conclusion which he may acquiesce in, if favorable, and which he may avoid, if not.'" [Citations.]' [Citation.] [¶] A major exception is when the error involves the fundamental jurisdiction of the court to act. [Citation.] The standard of proof and requirement of expert testimony imposed by the ICWA are not such matters. They are included in a statutory scheme created to protect Indian families. While the act's goals are laudable, there is no hint from the statutory language or cases construing it that the procedural standards are constitutionally compelled." (In re Riva M. (1991) 235 Cal.App.3d 403, 411-412 (italics added); see In re Jennifer A. (2002) 103 Cal.App.4th 692, 707 [same].)
DISPOSITION
The postjudgment orders are affirmed.
IKOLA, J. WE CONCUR: BEDSWORTH, ACTING P. J. ARONSON, J.