Opinion
A152167
03-06-2018
In re S.W., a Person Coming Under the Juvenile Court Law. ALAMEDA COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. Allen K., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Alameda County Super. Ct. No. 0J14023400-01)
Allen K. (father) appeals from a juvenile court order terminating his parental rights as to S.W., an Indian child, following a Welfare and Institutions Code section 366.26 hearing (.26 hearing). Father contends the court did not follow the Indian Child Welfare Act's placement preferences (ICWA) (25 U.S.C., § 1900 et seq.), and that there is insufficient evidence his continued custody of S.W. was likely to result in serious emotional or physical damage to her.
S.W. is also identified as "S.C." in various documents in the record. Undesignated statutory references are to the Welfare and Institutions Code. This appeal is the third appellate proceeding arising out of S.W.'s dependency. In 2017, we denied father's petition for extraordinary writ relief filed after the juvenile court terminated reunification services and set the .26 hearing. (Allen K. v. Superior Court (June 8, 2017, A150906) [nonpub. opn.].) We also dismissed father's appeal from an order denying his petition to invalidate the proceedings for failure to comply with ICWA. (Alameda County Social Services Agency v. Allen K. (Sept. 11, 2017, A150072) [nonpub. order].) S.W.'s mother is not a party to this appeal and is mentioned only where necessary.
We disagree and affirm.
FACTUAL AND PROCEDURAL BACKGROUND
This case has a lengthy history. We incorporate the factual and procedural background from our opinion denying father's writ petition. (Allen K. v. Superior Court (June 8, 2017, A150906) [nonpub. opn.].)
Detention Through 18-Month Review
After S.W. was born in 2014 testing positive for methamphetamine, the Alameda County Social Services Agency (Agency) filed a petition alleging she came within section 300. The court removed S.W. from mother's care, placed her in a foster home, and determined S.W. came within section 300, subdivisions (b), (g), and (j). The Muscogee (Creek) Nation (tribe) notified the Agency that S.W. was an Indian child through father's lineage, but that it would not intervene in the dependency. The court determined ICWA applied. In a disposition report and addendums, the Agency described its efforts to comply with ICWA's placement preferences and offered a declaration from an ICWA expert that S.W.'s placement with foster parents—who had Native American ancestry—was authorized under ICWA because the Agency had attempted to place S.W. "with family, and extended family to no avail."
In March 2015, the court adjudged S.W. a dependent of the court and ordered reunification services. The court determined there was good cause for not placing S.W. in accordance with ICWA preferences because "[a] suitable family within the ICWA preference criteria could not be found despite a diligent search." The Agency's 6-, 12-, and 18-month review reports and addendums described father's failure to comply with his case plan, and the Agency's ICWA efforts. At the 18-month review hearing in March 2017, the social worker described the Agency's ICWA efforts. The Agency's ICWA expert testified the Agency complied with ICWA. At the conclusion of that hearing, the court found clear and convincing evidence returning S.W. to father's care would create a substantial risk of detriment to her well-being, and that the Agency made active efforts regarding ICWA. The court terminated reunification services and set a .26 hearing. We denied father's petition for extraordinary relief (Cal. Rules of Court, rule 8.452). .26 Hearing
The Agency's .26 reports recommended terminating parental rights and ordering a plan of adoption. S.W.—who was almost three years old and who had been living with foster parents since she was about two weeks old—was "thriving." S.W. looked to "her foster parents for comfort, safety, and problem solving," and the foster parents wanted to adopt her. S.W. was "scheduled to have twice weekly contact with . . . father but he often misse[d] or cancel[ed] those visits," and visited S.W. only seven times between March and June 2017. Father cancelled several visits in June and July 2017. When S.W. learned she had a visit with father, she "object[ed] to going, saying her head and her tummy hurt." S.W. referred to father by his first name.
The Agency described its efforts to locate relatives for placement. None of S.W.'s maternal relatives were "available for placement." The Agency located and contacted "several paternal relatives," none of whom "were willing to be considered for placement and did not provide names and contact information for other possible relative placements." S.W.'s godmother was identified for possible placement, but was ineligible for emergency relative approval because of "her criminal history." Additionally, the godmother visited S.W. only once—in 2015—and had "not developed a relationship with" S.W.
Upon inquiring about the possibility of a Tribal Customary Adoption, the Agency learned such an adoption was "not something [the] tribe does," and that the tribe did not "intervene for children who are in other states." The tribe had no "cultural requests, recommendations, or suggestions" regarding S.W, nor any position on S.W.'s placement. The Agency "attempted to follow the ICWA . . . preference of placement with an extended family member but, despite extensive family finding and engagement efforts, was unable to find a . . . family member who was willing or able to care for [S.W.]." S.W.'s foster mother—who had "Native American ancestry"—was in the process of learning more about her family's Native American heritage. S.W.'s foster sibling had Mexican-Indian ancestry. The foster family participated in cultural activities at the Livermore American Indian Center and was committed to helping S.W. explore her ancestry.
Percy Tejada, the Agency's ICWA Expert, offered a supporting declaration. Tejada opined the Agency made efforts to comply with ICWA placement preferences and that S.W.'s foster family ensured she was "connected to her cultural community." According to Tejada, returning S.W. to parental custody would cause her "serious emotional and or physical damage." As Tejada explained, father's employment and living situation were unstable, and his relationship with his girlfriend involved domestic violence. Father also failed to visit S.W. consistently and did not engage in the Agency's services.
The court held the .26 hearing in July and August 2017. At the hearing, Tejada testified as an ICWA expert. Tejada, a member of a federally-recognized tribe, had knowledge of the prevailing social and cultural standards of "the general Indian community" in California and "on a national level." Tejada reviewed the Agency's reports and the visitation logs; he also spoke with the tribe's delegates, and with the attorney general for the tribe, who had no "opinion as to childrearing practices, or any comments on this case at all."
Tejada had worked in the ICWA field for 24 years and had testified as an ICWA expert in about 620 cases. At the time of the .26 hearing, Tejada was the ICWA coordinator for the Pit River Tribe, and the ICWA director for the Dry Creek Rancheria. Father's counsel objected to Tejada being qualified as an ICWA expert, arguing he did not have knowledge of, or specific experience with, the tribe. After considering the parties' written briefing, the court overruled father's objection.
Tejada described the services the Agency offered father, and opined the Agency provided active efforts to prevent the breakup of the Indian family. Next, Tejada testified about ICWA adoptive placement preferences, and opined the Agency complied with those placement preferences. Tejada testified the Agency "worked pretty hard to establish a placement preference." As Tejada explained, the Agency tried to place S.W. with godmother, but "that didn't work out." The tribe offered no "input" on placement, which "left the [Agency] in a place to try to find an ICWA compliant home. It's difficult. We don't have in California too many ICWA compliant homes. So the [Agency] made efforts to find [ ] an appropriate home for [S.W.] And the child has been there almost the last three years." Tejada testified father's continued custody of S.W. would likely cause her serious emotional or physical damage, based on father's living conditions and his failure to engage in services. Finally, Tejada opined terminating parental rights would not substantially interfere with S.W.'s connection to her tribal community.
Father acknowledged he had not seen S.W. since May. Father wanted to take S.W. to powwows, but those events were not tribe-specific, and he did not know of any childrearing practices specific to his tribe. As relevant here, counsel for father argued S.W.'s placement did "not meet the ICWA placement preferences." Counsel stated there are "four statutory preferences for ICWA placement. Mr. Tejada actually divided the first one, which is extended family member, into two, which is immediate family member and extended family member. But there are four or five . . . statutory preferences for ICWA placement when the tribe has not identified their own specific preferences, which it has not in this case. [¶] . . . [T]he current placement doesn't meet any of those placement requirements. . . . There's no famil[y] connection . . . and there's no connection with the tribe. And in the three years that the child has been placed there she doesn't attend tribal events, she doesn't speak to tribal members, she has no greater connection to the tribe than I do." Finally, counsel urged the court to apply the beneficial relationship exception to termination of parental rights.
At the conclusion of the hearing, the court determined the Agency made active efforts under ICWA, and that there was good cause for not placing S.W. in accordance with ICWA placement preferences because "[a] suitable family within the ICWA preference criteria could not be found despite a diligent search." The court also concluded "beyond a reasonable doubt that continued custody by [father] . . . is likely to result in serious emotional or physical damage to the minor. This finding is supported by the testimony of a qualified expert witness, specifically Mr. Tejada." The court terminated father's parental rights.
DISCUSSION
I.
Father's Challenge to the ICWA Placement Preferences Finding Fails
Federal and state ICWA statutes outline placement preferences when an Indian child is removed from the physical custody of his or her parents or from an Indian custodian. (25 U.S.C. § 1915; § 361.31; see also Cal. Rules of Court, rule 5.484(b).) "[T]he party requesting departure from the ICWA's placement preferences bears the burden of establishing the existence of good cause." (In re Alexandria P. (2016) 1 Cal.App.5th 331, 347 (Alexandria II).) We review a juvenile court's good cause finding for substantial evidence, under which father "bears the burden of proving the court's ruling was erroneous." (In re R.H. (2018) 20 Cal.App.5th 31, 40-41.)
Father challenges the court's finding regarding ICWA placement preferences on several grounds. First, he claims the juvenile court used placement preferences for foster care or preadoptive placement, when it "should have used the preferences for an adoptive placement." We are not persuaded for several reasons. First, father "failed to argue this issue to the [juvenile] court" and he is therefore "precluded from raising the argument on appeal. A claim of error is forfeited on appeal if it is not raised in the trial court. [Citation.] 'The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.' " (Alexandria I, supra, 228 Cal.App.4th at p. 1346.) "Although ICWA's placement preferences are both substantive and procedural, they are not jurisdictional and may thus be waived or forfeited." (In re R.H, supra, 20 Cal.App.5th at pp. 39-40.)
The preference criteria for foster care or preadoptive placements is: " '(i) a member of the Indian child's extended family; [¶] (ii) a foster home licensed, approved, or specified by the Indian child's tribe; [¶] (iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or [¶] (iv) 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.' " (In re Alexandria P. (2014) 228 Cal.App.4th 1322, 1346, fn. 13 (Alexandria I).) When "an Indian child is put into an adoptive placement, 'a preference shall be given, in the absence of good cause to the contrary, to a placement with (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families.' " (Alexandria II, supra, 1 Cal.App.5th at p. 347.)
At the .26 hearing, father did not argue the Agency or the court used the "wrong" placement preferences. Father's failure to raise this argument in the juvenile court forfeits his claim on appeal. (Alexandria I, supra, 228 Cal.App.4th at p. 1346 [de facto parents forfeited argument regarding ICWA adoptive placement preferences]; In re R.H., supra, 20 Cal.App.5th at pp. 39-40 [mother forfeited claim that "the juvenile court 'failed to follow the correct procedure in ruling on the [ICWA] placement issues' "].) Even if father had preserved the argument, it would fail. (In re R.H., supra, 20 Cal.App.5th at p. 40.) Father acknowledges the good cause standard is the same under the foster care and adoptive placement preferences, and he has failed to demonstrate prejudice from the court's purported failure to apply the proper placement standard. Finally, father cites no authority reversing a good cause determination based on the use of an allegedly incorrect placement preference at the .26 hearing.
We reach the same conclusion regarding father's claim that the court was required to "reconsider" placement preferences at the .26 hearing. Father has forfeited this argument by failing to raise it in the juvenile court. (In re R.H., supra, 20 Cal.App.5th at p. 39.) We have considered and rejected father's other arguments premised on the purported failure to comply with ICWA placement preferences.
Father also contends substantial evidence does not support the good cause determination. We disagree. As stated above, the juvenile "court may determine that good cause exists not to follow [ICWA] placement preferences." (§ 361.31, subd. (h).) "A court tasked with determining good cause will consider a constellation of factors in determining whether a party has proven good cause by clear and convincing evidence. Among those factors will be the Indian child's best interests and whether the child is at significant risk of suffering serious harm as a result of a change in placement, including the effect of breaking a child's existing attachments." (Alexandria II, supra, 1 Cal.App.5th at p. 350.) The "longevity of a child's foster placement may sometimes be relevant to deciding whether good cause exists to depart from the ICWA's placement preferences." (Id. at p. 352.) These considerations "are not exclusive and courts are thus 'free to consider other factors.' " (In re R.H., supra, 20 Cal.App.5th at p. 40.)
Here, the record "discloses substantial evidence supporting the juvenile court's good cause finding to overcome ICWA's [placement] preference[s]." (Fresno County Dept. of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 645-646 (Fresno County).) In its .26 report, the Agency chronicled its efforts to locate a relative for placement. None of S.W.'s maternal relatives were "available for placement" and S.W.'s paternal relatives were not "willing to be considered for placement." S.W.'s godmother had a "criminal history" and no relationship with S.W. The tribe expressed no opinion on S.W.'s placement. (In re R.H., supra, 20 Cal.App.5th at p. 41 ["the Tribe's inaction supports the court's finding of good cause to depart from ICWA's placement preferences"].) S.W. had lived with her foster family for almost her entire life, and she looked to foster parents for "comfort, safety, and problem solving." (See Alexandria II, supra, 1 Cal.App.5th at p. 352 [length of time in foster care placement may be relevant to good cause determination]; Alexandria I, supra, 228 Cal.App.4th at p. 1355 [court must consider whether child's best interests support a finding of good cause].) Additionally, S.W.'s foster family was committed to maintaining her connection to the tribe. (§ 361.31, subd. (i).)
Drawing all reasonable inferences in support of the good cause determination, and viewing the record favorably to the court's order, we have no difficulty concluding substantial evidence supports the good cause finding. (In re N.M. (2009) 174 Cal.App.4th 328, 338 [substantial evidence supported finding that "there was good cause to deviate" from ICWA placement preferences]; In re A.A. (2008) 167 Cal.App.4th 1292, 1330 ["court's good-cause finding was supported by substantial evidence"]; In re R.H., supra, 20 Cal.App.5th at p. 42 [substantial evidence supported good cause finding where tribe had no interest in participating in the determination of the child's permanent plan, and where the child was bonded to his prospective adoptive parents].)
Father's claims to the contrary appear "to be little more than a concerted effort to have this court reweigh the evidence presented, something we may not do." (Fresno County, supra, 122 Cal.App.4th at p. 646.) "The pertinent inquiry on appeal is whether substantial evidence supports the finding, not whether a contrary finding might have been made." (Alexandria II, supra, 1 Cal.App.5th at p. 355.) Father's reliance on In re G.L. (2009) 177 Cal.App.4th 683, does not alter our conclusion. In that case, the lower court determined good cause existed to depart from ICWA placement preferences, and the appellate court upheld that determination. (Id. at p. 698.) As in In re G.L., we conclude "substantial evidence supports the court's finding that good cause existed to deviate from ICWA's statutory placement preferences." (Ibid.)
II.
Substantial Evidence Supports the ICWA Detriment Finding
Next, father claims insufficient evidence supports the court's " 'ICWA detriment' " finding. Before a court terminates parental rights, it must make a finding, " 'supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.' [Citations.] This finding is commonly referred to as the ICWA detriment finding." (In re M.B. (2010) 182 Cal.App.4th 1496, 1502.) "We review the court's ICWA detriment finding for substantial evidence." (Id. at p. 1506.)
Father argues insufficient evidence supports the ICWA detriment finding because Tejada was not familiar with the tribe's "social and cultural standards." This claim is not persuasive. Section 224.6 does not require an expert witness to be familiar with the specific tribe's prevailing cultural and social standards; the statute simply identifies individuals likely to qualify as an "expert witness for purposes of Indian child custody proceedings," including a "professional person having substantial education and experience in the area of his . . . specialty." (§ 224.6, subd. (c)(3).) "ICWA does not require evidence of social and cultural standards of an Indian child's tribe before parental rights are terminated." (In re M.B., supra, 182 Cal.App.4th at p. 1503.)
Tejada was undoubtedly a "professional person having substantial education and experience in the area of his . . . specialty." (§ 224.6, subd. (c)(3).) He was a member of a federally recognized tribe, had been involved in ICWA matters for 24 years, and had testified as an ICWA expert in approximately 620 cases. Tejada had knowledge of the prevailing social and cultural standards of "the general Indian community" in California and "on a national level," and he had spoken with delegates from the tribe, and with the attorney general from the tribe. As discussed in detail above, there was no available evidence regarding the tribe's social and cultural standards. Under the circumstances, father has not demonstrated the court abused its discretion by qualifying Tejada as an expert witness. (See In re Roberto C. (2012) 209 Cal.App.4th 1241, 1249.)
Father suggests the outcome of the .26 hearing might have been different had Tejada been familiar with the tribe's cultural and social standards. According to father, his failure to participate in services and his "housing situation may have been acceptable" under the tribe's standards. We must disagree. "[E]vidence concerning the social and cultural standards of the [tribe] could not possibly have impacted the juvenile court's determination concerning [father's] ability to assume custody of [S.W.]." (In re Brandon T. (2008) 164 Cal.App.4th 1400, 1414.)
Father's claim that there was a lack of a causal relationship between the conditions in his home and the potential detriment to S.W. is unavailing. The question is whether substantial evidence supports the court's finding that father's continued custody would result in serious physical or emotional damage to S.W. (In re M.B., supra, 182 Cal.App.4th at p. 1506.) The answer is yes. The evidence before the court at the .26 hearing overwhelmingly demonstrated father failed to visit S.W. consistently, and that she experienced stress when she learned about a visit with father. Tejada testified father's continued custody of S.W. would cause her serious emotional or physical damage.
The "court made the detriment finding after considering all the evidence, observing all the witnesses, including [father], and assessing their credibility. The evidence before the court at the time of the [.26] hearing showed that [father] could not safely parent [S.W.] or provide [her] with long-term stability. Substantial evidence supported the court's finding beyond a reasonable doubt that continued custody of [S.W.] by [father] was likely to result in serious emotional or physical damage." (In re A.L. (2015) 243 Cal.App.4th 628, 646; In re M.B., supra, 182 Cal.App.4th at p. 1507 [substantial evidence supported ICWA detriment finding].)
DISPOSITION
The judgment terminating father's parental rights as to S.W. is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.