Opinion
NOT TO BE PUBLISHED
APPEAL from orders of the Superior Court of Fresno County. Jane A. Cardoza, Judge. F057005 (Super. Ct. No. 06CEJ300034-1)
Julie E. Braden, under appointment by the Court of Appeal, for Defendant and Appellant.
Kevin Briggs, Interim County Counsel, and William G. Smith, Deputy County Counsel, for Plaintiff and Respondent.
Beth A. Melvin, under appointment by the Court of Appeal, for Respondent, A.J.
OPINION
Before Cornell, Acting P.J., Gomes, J., and Dawson, J.
Three-year-old juvenile dependent, A.J., is an Indian child within the meaning of the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). His father, J.J., appeals from a juvenile court order appointing the child’s foster parent as his legal guardian (Welf. & Inst. Code, § 366.26). Appellant contends the court erred in finding good cause not to follow the placement preference of the child’s Indian tribe, the Pit River Tribe (Tribe), pursuant to ICWA. The Tribe’s preference was to place A.J. with his maternal grandmother (the grandmother). On review, we conclude there was substantial evidence supporting the good cause finding and affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
PROCEDURAL AND FACTUAL HISTORY
Dependency Proceedings Through Order Setting Section 366.26 Hearing
When A.J. was born in December 2005, both he and his mother tested positive for methamphetamine, alcohol, opiates and prescription medication. The newborn experienced drug withdrawal symptoms and exhibited signs of Fetal Alcohol Syndrome. Consequently, he received methadone and was admitted to a neonatal intensive care unit for observation and management of his symptoms. He was considered a medically-fragile child.
At the time, appellant and the mother were separated. She lived in Shasta County while appellant lived in Fresno County with their then 19-month-old son. That child, too, had tested positive for methamphetamine upon his birth. The mother denied serious drug use and did not want to participate in services or raise A.J. Although appellant stated he wanted custody of A.J., appellant could not care for a medically-fragile child and did not have anyone who could help him.
It was under these circumstances and because no family member offered to care for A.J., that he was detained in foster care and dependency proceedings were initiated in Shasta County. Based on the mother’s membership in the Tribe, the child welfare agency in Shasta County notified the Tribe of the dependency proceedings pursuant to ICWA. The Tribe formally intervened in the matter.
In February 2006, the Shasta County Superior Court exercised dependency jurisdiction (§ 300, subds. (b) & (j)) over A.J. and ordered the case transferred to Fresno County for disposition. The parents had reconciled and the mother relocated to live with appellant in Fresno County. The Fresno County Superior Court, sitting as a juvenile court, accepted the case in March 2006 and set a dispositional hearing that eventually occurred several months later.
Meanwhile, in April 2006 four-month-old A.J. was moved to a foster care placement in Fresno County. Although the foster mother was neither a relative of A.J.’s nor affiliated with the Tribe, the Tribe agreed with A.J.’s foster care placement. The Tribe, through its Indian Child Welfare Coordinator, Susan Alvarez, submitted qualified expert witness evidence that removal from parental custody was necessary and active efforts had been made to prevent the breakup of the Indian family. There was also good cause to modify ICWA’s placement preference (see 25 U.S.C. §§ 1915 & 1916). According to Alvarez, the grandmother was unable to care for A.J. due to her health and the Tribe had been unable to locate any other relative or Indian foster home willing to have placement. A.J. has remained in his foster mother’s care throughout the remainder of these proceedings.
The juvenile court, in August 2006, adjudged A.J. a dependent child, removed him from parental custody, and ordered a reunification plan for both parents. One year later, and despite reasonable services, neither parent was able to reunify with A.J.
During the reunification period, A.J. overcame his medically-fragile status. Nonetheless, he was referred for services through Exceptional Parents Unlimited (EPU) and Central Valley Rehabilitation Center (CVRC) because of his prenatal drug exposure.
In addition, A.J. and his parents were involved in attachment therapy between September 2006 and July 2007. A.J. presented with a flat affect and did not seek comfort from his parents. His difficulty attaching to them might be explained by his multiple placements. He was anxious and disengaged during, and in spite of, his therapy sessions with each parent. By contrast, when assessed with his foster mother, A.J. displayed referencing and engagement activities with the foster mother, using her as his reference base.
According to the child’s therapist, A.J. needed to be either reunited with his parents or placed in a permanent placement as soon as possible to reduce attachment difficulties and avoid future mental health problems. The therapist also recommended once A.J. was in a long-term stable relationship, attachment-based therapy would be beneficial to him because he exhibited “strong care provider preference.” The foster mother previously expressed an inability to provide a permanent home for A.J. as she had already adopted four children. Nevertheless, she was appropriately meeting A.J.’s physical and emotional needs such that further clinical treatment was unwarranted.
In light of the parents’ inability to reunify with A.J., the juvenile court, in August 2007, terminated reunification efforts and set a section 366.26 hearing to select and implement a permanent plan for A.J. The court also ordered that A.J. not be moved without further court order. As of August 2007, Alvarez reported the Tribe was exploring possible placement for A.J. with an aunt, uncle or grandmother. It also might have to consider placement with “extended family,” including tribal members who were not related to A.J.’s family. Although the court originally set a January 2008 permanency planning hearing for A.J., the actual contested hearing commenced November 2008 and did not conclude until the end of January 2009.
Permanency Planning and Placement
In January 2008, Fresno County Department of Children and Family Services (the department) recommended legal guardianship as A.J.’s permanent plan but requested a continuance to assess the grandmother for possible placement. Tribal representative Alvarez had asked that A.J. be placed with the grandmother. She was a member of the Tribe and had placement of two of A.J.’s half sisters; they were 13 and 20 years of age. The tribe previously reviewed the grandmother’s home apparently in connection with A.J.’s half sisters. The grandmother’s home then met standards for an ICWA certified home and had been sanctioned by the Tribe’s Council. The department represented it would use the court’s continuance to gather information from the Tribe and place A.J. with his grandmother.
In the 1990’s, the girls had been juvenile dependents. In 1997 the Shasta County Superior Court had ordered a permanent plan of legal guardianship for them with the grandmother.
Obtaining information regarding the grandmother and confirming the Tribe’s placement request proved elusive for the department; this led to many of the continuances the court would grant. Despite repeated and active efforts, the department’s social workers could neither reach the grandmother nor obtain documentation confirming the grandmother’s home had been approved either by Shasta County authorities or the Tribe.
Eventually, in late April 2008, the Tribe’s Council approved a resolution authorizing placement of A.J. with the grandmother for the purposes of legal guardianship and approving her home in Fall River Mills, California, as a “Designated Indian Home.” It nevertheless took the department three additional months to obtain the grandmother and the adult half sister’s fingerprints in order to conduct a required criminal records check. In early August 2008, the grandmother and the adult half sister “cleared.”
In the meantime, however, the department modified its recommended permanent plan for A.J. Starting in May 2008, the department alternatively recommended legal guardianship with the foster mother or adoption by the foster mother as A.J.’s permanent plan. According to the department, A.J. had no relationship with the grandmother and she had made no attempts to visit with him. Meanwhile, he had been in his current placement for two years and had a significant bond with his foster mother.
The grandmother had her first visit in over two years with the child in February 2008. The record reveals she visited once with infant A.J. in January 2006 while he was detained in Shasta County. The department arranged the February 2008 visit at the request of Alvarez. She apparently drove the grandmother and A.J.’s half sisters to Fresno so that they could visit A.J. one day and his older brother, who was in appellant’s custody, the next day. A.J. cried at the beginning of the visit and kept running back to the foster mother. After the foster mother left the relatives to visit, the grandmother took A.J. to McDonald’s, and afterwards, A.J. fell asleep. When he awoke, he put on his jacket, grabbed his diaper bag and waved goodbye. The grandmother told the foster mother A.J. was well behaved. There was no discussion regarding another visit.
Appellant stopped visiting A.J. in January 2008. The mother last visited A.J. in July 2007.
The department made efforts with Alvarez to schedule a second visit for March, even agreeing to bring A.J. to Sacramento. However, the anticipated March visit did not occur.
By this point, the foster mother had expressed her love for A.J. and willingness to provide him with a permanent plan of adoption if placement with the grandmother failed. Additionally, in the event adoption was in not A.J.’s best interests, she was willing to consider legal guardianship. A.J. appeared happy in his foster home placement. He referred to his foster mother as “mom” and sought her out for ongoing needs and affection.
The grandmother and A.J. next visited in May 2008. According to the notes of the social worker then assigned A.J.’s case, there was minimal contact between the grandmother and A.J. during the visit. The teenage half sister was the most involved with A.J. taking him to get food. The social worker described the relationship between A.J. and the relatives as that of a “friendly stranger.”
The grandmother, along with the half sisters, again visited A.J. a third time in July 2008. In early August 2008, social worker Summer Verhines, who had been recently assigned the case, spoke about A.J. with Jeanie Cox, who was a clinical supervisor of the county’s infant mental health program. Cox stated she was very familiar with the case even though A.J.’s last assessment was one year earlier. In Cox’s opinion, it would not only be detrimental, but devastating, to remove A.J. from his foster mother’s care.
Later in August 2008, Sean Osborn, a social worker from another county, submitted a “DECLARATION OF ICWA EXPERT.” In addition to stating his qualifications, Osborn claimed he reviewed several of the department’s reports as well as its delivered service log. He also interviewed social worker Verhines, the tribal representative Alvarez, and the grandmother.
In Osborn’s opinion, termination of parental rights was not in A.J.’s best interest because it would interfere with tribal membership rights. Alvarez told Osborn if parental rights were terminated, A.J. would not be entitled to tribal membership and benefits, including financial stipends from the Tribe’s casino. Osborn also cited the fact that the Tribe, through its resolution, had identified guardianship for A.J. with the grandmother as another reason why termination was in not in A.J.’s best interests.
Osborn additionally opined once the department received the Tribe’s resolution, there was no reason not to move A.J. to the grandmother’s home. According to Osborn, good cause existed not to follow ICWA’s placement preferences only when no preferred placement was available. Here, there was an available preferred placement with the grandmother.
He also questioned the department’s recommendation to leave A.J. in the foster mother’s care, through a permanent plan of either guardianship or adoption, based on the bond between the two of them. He claimed In re Desiree F. (2000) 83 Cal.App.4th 460 (Desiree F.), an opinion from this court, provided “guidance which should prevent counties from using bonding as a good cause reason not to follow placement preferences.”
November 2008 Evidentiary Hearing
In November 2008, the court commenced a contested evidentiary hearing on the issue of permanency planning for A.J. Osborn, who was deemed an expert witness, testified first. He supplied an ICWA-required opinion that to return custody of A.J. to his parents was likely to result in serious permanent emotional or physical damage to the child. Osborn also reiterated his opinion that termination was not in A.J.’s best interests because it would terminate his tribal membership.
On the issue of placement, Osborn agreed the department had to “clear” the adults in the grandmother’s home with regard to any criminal history. However, the department found no criminal history. As a consequence, and in light of the Tribe’s resolution approving the grandmother for placement, the department should have placed A.J. with her unless there was good cause. The resolution had “a lot of significance,” and it was not the department’s duty to approve placement beyond general safety issues.
Regarding the question of good cause, Osborn believed there was no good cause to deviate from the Tribe’s preferred placement with the grandmother. He did not discount that A.J. would suffer great emotional harm if removed from his foster mother’s care as well as the evidence he had a strong, positive bond with her and knew her as his mother. However, he testified In re Desiree F., supra, made it very clear bonding may not be considered in determining cause for placement purposes. In his view, this was what the department was doing.
Asked if he took into account the relationship, other than by blood, between the grandmother and A.J. in rendering his opinion, Osborn replied:
I use what small amount of contact that they’ve had which has not been a lot, the fact that they’re dealing with the native American tribe, but beyond that I didn’t take into consideration the lack of contact when making my decision.
Social worker Verhines testified next. She had been assigned A.J.’s case since June 2008. Verhines, who had a master’s degree in social work, was deemed an expert by the court in assessing dependent children and selecting permanent placements for them.
Verhines testified as to her efforts, and those of her predecessor, to obtain contact information for the grandmother, in particular to “clear” her home for placement. Through the tribal representative Alvarez, the social worker eventually obtained the grandmother’s address and phone number in late June 2008, only to discover the telephone number was disconnected. The fingerprint check was done at the end of July 2008 when the grandmother and the adult half sister attended a court hearing.
Verhines subsequently learned through Alvarez that the grandmother preferred not to have direct contact with the department but rather all contact should go through Alvarez. The department had no one-on-one contact with the grandmother except when she was present “for court and still it’s very minimal.” The grandmother never inquired as to A.J.’s well-being or welfare.
Verhines also testified about the July 14, 2008, visit she supervised between the grandmother and A.J. Her goal in supervising visits is to observe and assess how the adult and child interact, any obvious bonding, any nurturing, any engagement, does the visit appear comfortable for both the adult and child and whether there is any affection. According to Verhines, the grandmother was “fairly aloof.”
“There was no sort of contact with [A.J.]. She did not initiate any contact with him. There was no talking to him, playing with him, anything of this sort. Only time she had contact with him was when [the younger half sister] literally took [A.J.] and placed him on the grandmother’s lap. And then she held him like in this manner with her arms across his chest for say about 45 to -- 50 seconds to about a minute and he appeared uncomfortable, was wiggling around. She didn’t talk to him. She didn’t play with him. She didn’t smile at him, laugh with him. And he got off and went away. He did play with [the sisters]... but kept looking back to the care provider who was there and, you know, kind of kept going back to the care provider as a secure base. But I saw very little attempt on the grandmother’s part to try to interact with [A.J.]”
The grandmother’s lack of interaction and engagement with A.J. was unusual in the social worker’s experience. It was especially unusual for someone who sought placement of a child.
Since the July visit, the grandmother, along with Alvarez, picked A.J. up once in mid-September for an unsupervised visit. At the last hearing, which occurred in October 2008, Verhines told the tribal representative she would be happy to take A.J. to “Sacramento or somewhere in the middle” for visits, but Verhines never received a call back from Alvarez.
Verhines detailed her August 2008 conversation with Jenny Cox, the supervisor of A.J.’s previous mental health therapy.
“As soon as I mentioned the case name, Ms. Cox remembers it right off the bat and she - - there was a change in her tone of voice and she became very passionate about the case. And when I spoke to her about it, she said that the last assessment was done by Debra Patterson on August 2nd and she said that she was familiar with the case because they had sat in staffing together, um, regarding the issues, and, um, Ms. Cox stated that - - that not only would it be detrimental to Anthony to remove him from his care provider, but it could be devastating, and she felt very strongly he should stay in his current placement.”
This information contributed to the formation of Verhines’s recommendation.
Asked her opinion as A.J.’s case manager, about placing A.J. with the grandmother, Verhines testified:
“As the case manager and somebody whose job it is to do what’s in the best interests of the child, I strongly feel it would be emotionally as Ms. Cox says devastating to him. In my observation of the visit there just is no attachment, no bond, um, and I feel that separating him from this care provider now at this age when he’s been with her his whole life, this would damage him most likely for the rest of his life.
Um, we’ve seen it in - - all the cases that we work with it’s just, you know, rampant unfortunately. And seeing how the grandmother was not there and not connecting with him during the visit, my concern is that if he were to go and live with her, he would not get the emotional support and physical support the nurturing that is required for children to grow up to be health human beings.”
In addition, based on Verhines’s review of the file, she was aware A.J.’s mother periodically returned to the grandmother’s home and spent significant periods of time there. This, too, had played into Verhines’s permanency planning recommendation.
Verhines also testified on the topic of transitioning a child from one home to another. She had experience in transitioning and acknowledged the department had means of addressing the separation of a child from his care provider. There could be mental health treatment. Otherwise the department generally tried to have several visits back to back in order to initiate some bond or relationship. It is on a “case by case basis” whether the children “end up bonding or having a relationship with other people.” “Sometimes they do and sometimes they don’t.”
In this case, placement transitioning would be very difficult. The department had been trying to increase the visits and accommodate the Tribe by meeting halfway due to the eight-hour driving distance between Fresno and Shasta Counties, but this had not happened. In addition to the geographical distance, Verhines did not “seem to have willing participation.”
Verhines further testified A.J. was in good emotional health. He had no extraordinary emotional, psychological or physical needs. At most, he might need some speech therapy when he was older.
Following Verhines’s testimony, the parties submitted the matter. The juvenile court in turn continued the matter to late November for closing arguments.
Reopened Evidentiary Hearing in January 2009
Following the November evidentiary hearing, tribal representative Alvarez requested a meeting with the department’s program manager, social work supervisor, ICWA compliance officer and social worker Verhines. Their meeting led the department to issue a new permanency plan recommendation for A.J., namely, that A.J. be placed with the grandmother, and the court select legal guardianship without dependency as A.J.’s permanent plan. In turn, the department moved to reopen and present additional evidence. The court granted the motion.
The department wished to reopen the matter so that the court could consider its latest addendum report, submitted in December 2008. The December 2008 addendum report was part chronology of social worker narratives and other documentation and part legal argument. The department endorsed the ICWA expert Osborn’s opinions and stated A.J. should have been placed with the grandmother once criminal clearances were obtained.
A.J.’s counsel was not opposed to legal guardianship as a recommended permanent plan for the child. She did oppose, however, placing A.J. with the grandmother as contrary to the child’s interest.
Having reopened the matter, the court permitted A.J.’s counsel to introduce additional evidence to support her position and the other attorneys to offer rebuttal testimony. The court, however, also expressed its view that a good cause determination could not rely solely on a claim that deviating from the Tribe’s placement preference would be in a child’s best interest nor could it be based solely on a child’s bond.
A.J.’s foster mother testified the maternal grandmother had five visits with A.J. in 2008. There were no other visits between them since April 2006 when A.J. was placed with the foster mother.
The foster mother recalled participating in three of the visits. One was the July 14, 2008, to which social worker Verhines previously testified. The foster mother testified there was no interaction, play, hugs or kisses between the grandmother and A.J. The grandmother did not ask any questions about what A.J. liked or if he had any issues that needed to be addressed.
Another visit occurred in late November 2008. Again, the grandmother did not play with A.J. Her only conversation with the child was, “Hi” and “How are you?”
The foster mother did not recall the date of third visit in which she participated. She did remember that it was one-hour long and occurred in the playground in front of the courthouse. The grandmother again did not interact with A.J. His half sisters did interact with him. They played on the equipment with him and talked with him.
Asked if the grandmother ever held A.J., the foster mother remembered seeing the grandmother once pull A.J. over to her. This lasted five seconds. “As long as he could get down and go he went.” By contrast, A.J. would hug the foster mother. When he plays on a play yard, as he did in front of the courthouse, he comes over periodically to the foster mother and gives her hugs. He wants to know she is there, and once he gives her a hug, he will return to play.
The foster mother also testified following each visit, A.J. would awake during the night crying, sniffling and shaking. This was out of the ordinary for A.J.
In addition, A.J. did not refer to the maternal relatives as his sisters or grandmother. The foster mother did not know whether he recognized them when he went to visit.
Social worker Verhines also returned to the witness stand. She confirmed A.J. had five visits with the grandmother in 2008 for an approximate total of 13 hours of visitation. The first time Verhines saw the grandmother and A.J.’s half sisters, she gave each of them a business card with her phone number on it. However, it was the tribal representative Alvarez who contacted Verhines to set up the visits.
Verhines was questioned again about the July 14, 2008, visit she had supervised. According to Verhines, the grandmother sat on a park bench for the entire visit except when A.J.’s mother, along with A.J.’s older brother, appeared. The grandmother welcomed both of them with hugs. The grandmother did not interact much with A.J. except once when the older of his two half sisters put A.J. on the grandmother’s lap. That lasted approximately one and a half minutes until the grandmother let him go.
Visits since then occurred on court days when Verhines was generally in court. However, from what she could observe, A.J. was generally on the playground and the grandmother sat on a bench. He played with his older sisters or some of the other children on the playground. From what Verhines had seen, it was fair to say the grandmother had little physical contact with A.J.
His older half sisters were more affectionate with him. The elder one, Y., tended to show him more motherly affection, directed his play, asked him to “come here” and carried him around.
Y. told the social worker during the July visit that she lived with and took care of the grandmother. The grandmother was diabetic and did not function very well according to Y.
Cox, the clinical supervisor of the county’s infant mental health program, also testified. Although she had 20 years of clinical practice and training in infant mental health, she did not have a specialty in it. She previously reviewed and signed off on A.J.’s mental health assessments in 2006 and 2007.
In Cox’s opinion, a move would be detrimental to A.J. based on the timing and the length of his current placement and what was known about infant mental health. His foster home placement tracked the period of time in which a child attaches to his or her care provider. He identified the foster mother as his parent and his security base. The fact that A.J. presented with a flat affect and refused comforting by his parents in 2006 also supported her opinion.
A.J. was a child who clearly needed significant infant mental health treatment in 2006 and 2007. Although the therapist tried to work with the parents to build a relationship with A.J. and worked with A.J. to basically repair the relationship with his parents, it was not strong enough to have anything to build on. Cox noted, in particular, A.J.’s father seemed, to the therapist, to be “kind of passive, uninvolved and disengaged.” Like some people, he did not have the strengths on which to build.
Asked about what impact the grandmother’s lack of interaction and physical contact with A.J. would have on her opinion, Cox did not know how they could have a relationship. Part of relating to a baby is engaging that baby, playing with the baby, and doing activities with the baby.
On cross-examination, Cox acknowledged she was not an expert in ICWA. She was familiar, however, with Native American culture.
Next, asked whether it was possible to transition a child from one home to another, Cox replied “anything is possible.” Transition could include mental health services. However, the fact that the grandmother lived eight hours away from A.J.’s current placement would certainly make a placement transition challenging. Cox did not know how such a transition would be accomplished.
The court asked Cox to clarify what attachment was when she talked about the attachment A.J. had to the foster mother. Attachment for a child A.J.’s age involved referencing the care provider, eye contact, responding to the care provider, looking to the care provider as a reference point in terms of being able to be soothed and responding to things such as being able to read the care provider’s cues, as well as the care provider being able to read the child’s cues. It is the way the child references his world. The care provider is the child’s security base. If there is no secure base, the child will not have that attachment and will not know who to refer to or to whom to go.
Once a child has an attachment and there is a change in placement, such a child can attach to another. The child will regress for a period of time. How long depends on the symptoms the child presents. The child’s ability to attach with another care provider also depends on the new care provider’s skill.
The mother’s attorney called the supervisor of the department’s assessment unit. He authored the latest addendum report recommending placement with the grandmother. He testified, citing to others, that in native American culture, it is not just one family who has responsibility for a child. The tribe raises the child. In his opinion, A.J.’s mental health evaluations did not take this into account. Having listened to the additional testimony, the supervisor did not change his mind about his recommendation.
With regard to a transition, the assessment unit supervisor testified the department can set up mental health services in another county prior to moving any child. Given there was a significant relationship with the current care provider and the grandmother lived so far away, transition might take “a little longer” than normal. He predicted they might “do a couple hour visits” both in Fresno and Shasta Counties and slowly work in some weekend visits. During this process, a therapist would be involved although that was not something the department normally did.
Asked by the court why the grandmother had not had more contact with A.J., the witness could not address that issue. The department tried to set up more visits but there was no follow through.
Under further questioning by the court, the supervisor admitted such a transition would be a challenge and could not occur without continuing dependency jurisdiction. It had been the Tribe’s wish that the permanent plan be legal guardianship without dependency. However, the supervisor expressed a willingness to change his recommendation to legal guardianship with dependency.
Tribal representative Alvarez was the last witness to testify. She believed the Tribe would be amenable to transitioning A.J. and providing mental health services for him. She stated the Tribe had its own health clinic and access to mental health services. On the other hand, she did not know if the Tribe’s clinic or anyone in Shasta County provided attachment therapy. She would contact the Tribe’s health clinic to find an outside source if necessary. Historically, the Tribe’s health clinic referred patients out to experts in the Redding area, one hour away.
Following submission, the court recalled the case on another date for the attorneys’ closing arguments. On January 20, 2009, the court issued its ruling. After reviewing the history of the case, the court found there was good cause to deviate from the placement preference. The court explained:
“With this background this court finds that there is good cause to deviate from the placement preference. This court finds that it would be callous to disrupt this child’s placement and finds that there is a real risk of attachment disorder. This risk is profound given the record of the child’s behavior with the biological parents.
Here the department the tribe and the parents’ attorneys are asking this court to place this child who has had only 13 hours of contact with the maternal grandmother. The department and parents’ counsel have insinuated this child can start a bond with another family. This court is unwilling to order such an experiment with the grandmother who has failed to engage the child in any meaningful way.”
The court then ordered a permanent plan of legal guardianship with the foster mother and continued its dependency jurisdiction.
DISCUSSION
1. Preliminary Matter
The department filed a respondent’s brief endorsing the juvenile court’s decision. It did so claiming it was a respondent’s duty to assist the appellate court by noting why a judgment should be sustained. (Mosher v. Johnson (1921) 51 Cal.App. 114, 116) Appellant contends in his reply brief the department is barred from changing its theory of trial on appeal. (Cable Connection, Inc. v. DIRECTV, Inc. (2008) 44 Cal.4th 1334, 1350)
Assuming, for the sake of argument, appellant’s legal reasoning is correct, we fail to discern what he would have this court do. He neither suggests nor requests a remedy in his briefing. At oral argument, he suggests we now strike the respondent’s brief.
In any event, lost in his argument, not to mention the department’s, are two important points. One, on an appellate claim of insufficient proof, it is for this court to determine whether there is any substantial evidence, contradicted or not, which will support the conclusion of the trier of fact. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379.) Two, in light of the department’s ultimate endorsement of the Tribe’s placement preference, this court appointed appellate counsel on behalf of A.J., the nonappealing child in this case. (§ 395, subd. (b)(1).) This court has the benefit of his appellate counsel’s brief that more than adequately addresses the record and the issue on appeal. With these observations in mind, we proceed to the single appellate issue before us, whether there was substantial evidence to support the juvenile court’s good cause determination.
2. Good Cause
In any foster care, preadoptive or adoptive placement of an Indian child, courts shall give preference, “in the absence of good cause to the contrary,” to a placement first and foremost with a member of the child’s extended family. (25 U.S.C. § 1915 (a) & (b).) ICWA, however, does not define the phrase “good cause.” Indeed, it neither expressly nor impliedly restricts a court in its good cause evaluation. Rather, ICWA provides state courts with flexibility in determining the placement of an Indian child. (Fresno County Dept. of Children of Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 632, 641-643; Fresno County DCFS.)
We assume, for the sake of argument, this would include, as well, a legal guardianship placement.
In Fresno County DCFS, supra, the juvenile court found good cause to overcome an Indian tribe’s placement preference as to two sisters, one of whom was an Indian child and the other was not. (Fresno County DCFS, supra, 122 Cal.App.4th at pp. 631-632.) The non-Indian child had extraordinary emotional needs and a high risk of attachment disorder such that she could not be moved to an ICWA-preferred placement. Although the Indian child had no such problems, the court found as to her conflicting preferences, namely, a state preference for maintaining a sibling relationship and the ICWA placement preference. The juvenile court was not willing to separate the two children. (Id. at p. 640.)
At issue on review was whether ICWA recognized only limited criteria, set forth in federal guidelines, for a good cause determination, none of which existed as to the sister who was an Indian child. (Fresno County DCFS, supra, 122 Cal.App.4that pp. 641-643.) The Guidelines at issue then and now states:
The federal guidelines are contained in Department of the Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979) (hereinafter, Guidelines).
“(a) For purposes of foster care, preadoptive or adoptive placement, a determination of good cause not to follow the order of preference set out above shall be based on one or more of the following considerations:
“(i) The request of the biological parents or the child when the child is of sufficient age.
“(ii) The extraordinary physical or emotional needs of the child as established by testimony of a qualified expert witness.
“(iii) The unavailability of suitable families for placement after a diligent search has been completed for families meeting the preference criteria.” (Guidelines, section F.3(a).)
This court disagreed with the premise that the juvenile court had to find good cause as to the Indian child within the limited considerations set by the Guidelines. We held the Guidelines do not restrict a juvenile court’s good cause determination to the three considerations contained in section F.3. (Fresno County DCFS, supra, 122 Cal.App.4th at p. 643.)
As we explained, the Guidelines, by definition, are not binding on the courts. (Fresno County DCFS, supra, at pp. 642-3.) Their significance is important but not controlling. (Id. at p. 643.) In fact, the Guidelines explicitly state the courts have the primary responsibility for interpreting the term “good cause.” (Ibid.) In California, the non-restrictive nature of the Guidelines on good cause is reflected in our California Rules of Court. California Rules of Court, rule 5.484 (b) sets forth the identical considerations as the Guidelines for a good cause determination but does not restrict the court to only those three considerations. Instead, the rule provides “[t]he court may modify the preference order only for good cause, which may include the following considerations. …” (Cal. Rules of Court, rule 5.484(b), italics added.)
A. Appellant’s Reliance on the Guidelines
Appellant nevertheless relies on the Guidelines to argue there was no expert testimony A.J. had extraordinary physical or emotional needs and insufficient evidence of good cause. Although he acknowledges our decision in Fresno County DCFS, he interprets it to hold only that the strength of a sibling relationship is an appropriate consideration in evaluating good cause. Certainly, this was one aspect of our decision (see Fresno County DCFS, supra, 122 Cal.App.4th at pp. 646-647). However, as discussed above, appellant’s reading of Fresno County DCFS is far too narrow. Fresno County DCFS, supra, 122 Cal.App.4th at pages 641-643 also expressly holds a juvenile court’s good cause evaluation is not limited to the three considerations contained in the Guidelines.
B. No Expert Witness Testimony Requirement
Appellant also assumes a good cause determination must be supported by expert witness testimony because there was expert witness evidence in Fresno County DCFS, supra, as well as in a more recent decision out of this court, In re A.A. (2008) 167 Cal.App.4th 1292 (A.A.). Both appellant’s assumption and his claim of no supporting expert evidence in this case are flawed.
A.A. involved two Indian children whom a child welfare agency placed with extended family members at the Tribe’s request. Within a matter of months, the relative caregivers asked the agency to remove the children from their care. The agency was able to successfully place the children in an Indian foster home specifically interested in adoption. However, eight months later the children’s former relative caregivers, prompted by the Indian tribe, asked to be reconsidered for adoptive placement. By that point, however, moving the children yet again would have been detrimental because each child suffered from an attachment disorder. (A.A., supra, 167 Cal.App.4th at p. 1297-1298.) In part, the case posed the issue of how a court should proceed at a termination hearing involving Indian children who are already in one preferential placement when a Tribe asks to change that placement to another with greater priority. (Id. at pp. 1328-1329.)
No doubt expert evidence may assist a court in evaluating whether good cause exists to overcome a preferred placement under ICWA. However, neither Fresno County DCFS, supra, nor A.A., supra, stand for the position that a good cause determination must be supported by expert witness testimony. Appellant notably fails to point to any such holding in each decision.
In any event, there was such expert evidence in this case. There were the undisputed mental health opinions that A.J. would be emotionally devastated to be removed from the foster mother’s care and would need attachment therapy if his placement changed. There was also the social worker’s expert opinion that there was no interaction or engagement on the grandmother’s part with A.J. so that he was not likely to receive from her the emotional support and nurturing required to grow up to be a healthy human being.
C. Court’s Consideration of Bonding Evidence
Appellant further argues the court could not consider A.J.’s attachment with his foster mother in determining good cause. He cites, as did the ICWA expert Osborn, a portion of our opinion in Desiree F. As discussed below, we disagree.
In Desiree F., there was information from the outset about a mother’s Indian heritage and the possibility that ICWA applied to her child’s dependency. Nevertheless, there was no ICWA notice compliance whatsoever over the course of the two-plus year juvenile dependency proceeding. It was only after parental rights were terminated that the mother’s Indian tribe learned of the child’s existence. (Desiree F., supra, 83 Cal.App.4th at pp. 464-468.) The Indian tribe unsuccessfully sought to intervene and then appealed to this court. (Id. at p. 468.) Our opinion not only reversed the order denying intervention but also invalidated all of the juvenile court’s orders starting with the jurisdictional order. (Id. at pp. 464 & 475-476.)
We directed the juvenile court on remand to apply the procedural and substantive provisions of ICWA to the child. (Desiree F., supra, 83 Cal.App.4th at pp. 475-7.) In the process, we also anticipated the issue of the child’s future placement. We advised:
“Factors flowing from Desiree’s current placement in flagrant violation of the ICWA, including but not limited to bonding with her current foster family and the trauma which may occur in terminating that placement, shall not be considered in determining whether good cause exists to deviate from the placement preferences set forth in the ICWA. (25 U.S.C. §§ 1915, 1916; Guidelines, supra, at pp. 67594-67595; cf. B.R.T. v. Executive Director of S.S. Bd. N.D. (N.D. 1986) 391 N.W.2d 594, 601, fn. 10.)” (Id. at p. 476.)
Appellant reads this statement to mean a court may not consider a child’s current bond to a current care provider in determining good cause not to follow the ICWA placement preference. We do not agree with appellant’s interpretation of Desiree F. Rather, we directed the juvenile court on remand that, due to the “flagrant violation” of ICWA in Desiree’s case, it should not consider factors flowing from the child’s current placement in determining whether good cause existed not to follow ICWA’s placement preference. As the sister state court in B.R.T. v. Executive Director of S.S. Bd. N. D., supra, explained, an adoptive placement arguably could not be premised upon considerations flowing from a defective preadoptive placement, including bonding between the foster parents and the child.
In this case, by contrast, there was no ICWA violation, flagrant or otherwise. The department and the court proceeded according to ICWA throughout these proceedings. In addition, A.J.’s foster care placement was not defective under ICWA. It was tribal representative Susan Alvarez who opined in 2006 there was good cause to modify ICWA’s placement preference. The grandmother was unable to care for A.J. due to her health and the Tribe had been unable to locate any other relative or Indian foster home willing to have placement. Alvarez was still looking for a preferred placement up until the figurative eve of the original date for the section 366.26 hearing. Eight months later, when the department had secured both the Tribal Resolution approving the grandmother for placement and the criminal records clearances, the issue of good cause had arisen. Given ICWA’s provision for a good cause exception, we fail to see how A.J.’s continued placement in foster care pending the resolution of the good cause issue violated ICWA.
We agree with the trial court’s interpretation of the case law that a child’s bond with a current care provider cannot be the sole factor in making any placement decision (In re Jasmon O. (1994)8 Cal.4th 398, 422) or, more specifically, in making a good cause determination. However, as summarized above and discussed below, A.J.’s bond or, to be more precise, attachment to his foster mother was not the sole evidence supporting the court’s decision.
D. Substantial Evidence
The record supports the juvenile court’s finding that A.J. was at risk of an attachment disorder. There was undisputed evidence dating back to 2007 that he would need attachment therapy with a change in placement, and time was of the essence given the depth of his relationship with the foster mother. As the court pointed out, the risk was profound given the record of the child’s behavior with the biological parents even with the benefit of more than six months of therapeutic intervention.
Added to this was the grandmother’s very limited contact with A.J. and her failure to engage him in any meaningful way. Her lack of effort to visit, interact and develop a relationship with A.J. was striking. It also recalls the therapist’s evaluation of appellant as passive, uninvolved and disengaged so as to lack the strengths on which to build an attachment with the child. Although there was evidence that a child who has an attachment can attach to another care provider, it was undisputed a child’s ability to attach also depended on the new care provider’s skill. Under the circumstances of this case, the juvenile court reasonably could infer it was unlikely A.J. could develop a healthy attachment to the grandmother.
At oral argument, appellant claimed this observation is an example of “dominant cultural expectations” of how the Indian relative should behave which ICWA seeks to overcome. We disagree, noting that the grandmother was affectionate with A.J.’s mother and brother when they appeared at a visit.
We conclude there was substantial evidence to support the court’s good cause determination. (Fresno County DCFS, supra, 122 Cal.App.4th at p. 645.)
DISPOSITION
The January 2009 permanency planning order is affirmed.