Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Humboldt County Super. Ct. No. JV050095
Marchiano, P.J.
Appellant Cheryl H. is the mother of 12-year-old K.L., a dependent child of the juvenile court. The juvenile court ordered a legal guardianship for K.L. at the permanency planning hearing. Mother contends the guardianship was imposed in violation of the Indian Child Welfare Act (25 U.S.C. § 1901 et seq.) (ICWA). We agree and reverse. When it ordered the guardianship, the juvenile court failed to make the required detriment finding, based on expert testimony, that Mother’s continued custody of K.L. would result in serious physical or emotional damage.
I. FACTS
On January 19, 2005, when K.L. was nine, the Del Norte County Department of Health and Human Services (Del Norte DHSS) filed a juvenile dependency petition on her behalf. The petition alleged, as here pertinent, that: Mother failed to protect K.L. from sexual molestation by Kevin S., K.L.’s uncle, and in fact continues to live with Kevin and allow him contact with K.L.; Kevin would lie on top of K.L. and simulate sexual intercourse while they were both fully clothed; Kevin often kept a gun with him in the living room; and Mother used alcohol in K.L.’s presence.
The detention report indicated that K.L. stated that Kevin had laid on top of her about 20 times when he was drunk, and she was afraid of him. The report also indicated that K.L. was an enrolled member of the Hoopa Valley Tribe and was “currently placed in shelter care in an Indian home. The Tribe will . . . determine whether there are appropriate relative placements.”
K.L.’s father is an enrolled member of the Hoopa Valley Tribe. Mother is an enrolled member of the Yurok Tribe. The father is not a party to this appeal.
On February 4, 2005, the Del Norte DHSS filed an amended petition alleging, as here pertinent, that Mother “has engaged in acts of drinking, substance abuse and violence in the presence of” K.L.; “drinks and fights with the other adults in the home in front of” K.L.; and is aware Kevin has a gun in the home and that K.L. has access to it.
The jurisdictional report indicated that K.L. was still in foster care. The report repeats K.L.’s statements regarding the sexual abuse, and that she was afraid of Kevin. According to the report, K.L. had told a social worker that Mother had locked herself in the bathroom on several occasions, and K.L. would look under the door and see Mother injecting herself with a needle.
Mother was reported to have denied the allegations against her. She denied intravenous drug use and had tested clean for drugs on January 28, 2005. She did not think Kevin’s behavior toward K.L. was “a big deal” because Humboldt County Child Protective Services, which had had prior contacts with the family, “did not think it was a big deal.” Mother said she loved K.L., who “was her whole life,” and had enrolled in substance abuse counseling and parenting education services through the Hoopa Valley Tribe’s Department of Human Services.
At the March 18, 2005 jurisdictional hearing, Mother submitted on the report.
On March 24, 2005, K.L. was placed into “the tribe-specified home of Diane ‘Sam’ A[.]” in Humboldt County. Sam “is a non-relative extended family member who is familiar with [K.L.]’s needs.” Both Mother and K.L. requested this placement.
On April 1, 2005, the Del Norte County juvenile court withheld its ruling on disposition and transferred the case to Humboldt County.
Respondent Humboldt County Department of Health and Human Services (Department) prepared a dispositional report, which noted that “[t]he primary problems requiring interaction are substance abuse, abusive household relationships, and poor parenting skills.” Mother “periodically displays poor parenting skills and is unaware how her continuing alcohol and related criminal involvement negatively impacts [K.L.].” Mother had enrolled in substance abuse counseling and parenting education through the United Indian Health Services. The Department recommended family reunification services.
On October 3, 2005, the Humboldt County juvenile court declared K.L. a dependent child and ordered reunification services. On October 19, 2005, the court made dispositional findings and orders. Invoking ICWA, the court found that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of a possible Indian family . . . and that these efforts were unsuccessful.” Also invoking ICWA, the court made a detriment finding, i.e., found “by clear and convincing evidence that continued custody by the Indian parent . . . is likely to result in serious emotional or physical damage to the child.”
On October 24, 2005, the Department reported that Mother had enrolled in a “clean and sober house,” and had entered an intensive outpatient substance abuse program. That same day, the juvenile court restated its two ICWA findings, which we have described in the preceding paragraph. The court set a six-month review hearing for April 3, 2006.
The parties agree that Mother did not appeal from the dispositional findings and orders.
The report for the six-month review hearing showed that K.L. remained in the placement with Sam. Mother was currently living at the Serenity Inn in Eureka “and [was], once again, reportedly clean and sober.” She was working full time. But in February 2006 she had declined a drug/alcohol test on the curious ground that she was menstruating. In March she began drinking heavily and was admitted to the emergency room for pancreatitis related to alcohol use.
“Despite a recent relapse, [Mother] has been actively participating in case plan tasks such as counseling to address domestic violence, mental/emotional health, and drug dependency/sobriety. She is developing parenting skills and demonstrating clearly that she will not permit Kevin . . . to be around [K.L.] or to allow others to sexually abuse her child.”
Until the recent relapse, the Department was considering family reunification. But the relapse “has raised concerns about her current ability to parent [K.L.] during stressful moments.” Largely because Mother took “fairly quick responsibility for her relapse and . . . move[d] swiftly towards sobriety,” the Department recommended six more months of reunification services.
On April 6, 2006, the juvenile court ordered six more months of services. The court also found that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of a possible Indian family . . . and that these efforts were unsuccessful.” Curiously, the court did not make a detriment finding, i.e., that continued custody by the Indian parent is likely to result in serious emotional or physical damage to the child—or, stated another way, that the return of the child to Mother would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.
The 12-month review report, filed with the juvenile court on December 7, 2006, stated that K.L. remained in the placement with Sam. K.L. felt that Mother was not ready to be reunified with her. The current placement was safe and stable. The Department recognized the strong bond between Mother and K.L., but observed that the legal limit on the length of reunification services had passed. The Department recommended that the court set a permanency planning hearing under Welfare and Institutions Code section 366.26 (.26 hearing).
Subsequent statutory citations are to the Welfare and Institutions Code. Rule references are to the California Rules of Court.
On December 7, 2006, the juvenile court terminated reunification services and set a .26 hearing for March 26, 2007. The court found that “active efforts have been made to provide remedial service[s] and rehabilitative programs designed to prevent the breakup of a possible Indian family . . . and that these efforts were unsuccessful.” The court also found by clear and convincing evidence that “the return of the child to [Mother] would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.”
The parties agree that Mother did not challenge these findings by a petition for extraordinary writ.
The report for the .26 hearing is dated February 15, 2007, and was filed with the court May 14, 2007. The report noted that K.L. “reports a desire to live with [Sam] ‘forever.’ ” The Department recommended that the juvenile court designate legal guardianship as the appropriate permanent plan for K.L., and terminate dependency. The Department recommended that the court find that “active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of a possible Indian family . . . and that these efforts were unsuccessful.” The Department did not recommend that the court make a detriment finding, i.e., that the return of the child to Mother would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child.
The .26 hearing was held May 14, 2007. The court adopted the recommendations of the Department, including the specific proposed findings, and ordered that guardianship be the permanent plan for K.L. The court did not make a detriment finding. As noted, the Department did not recommend such a finding.
II. DISCUSSION
Mother contends the juvenile court violated California law implementing ICWA by failing to make a detriment finding, supported by expert testimony, when it ordered the legal guardianship. We agree because the juvenile court was required to make a detriment finding when it ordered the guardianship, but failed to do so.
Section 361.7 governs the involuntary placement of a dependent child with Indian ancestry. Subdivision (c) of section 361.7 provides: “No foster care placement or guardianship may be ordered in the proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of a qualified expert witness, as defined in Section 224.6, 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.”
Section 224.6 provides a nonexclusive list of the various occupations which may enable a person to be a “qualified expert witness,” but specifies that the person cannot be “an employee of the person or agency recommending foster care placement or termination of parental rights.” (§ 224.6, subd. (a).) Thus, the Department social workers who wrote the .26 report cannot qualify as expert witnesses under the statute.
Sections 361.7 and 224.6 were enacted in 2006. (Stats. 2006, ch. 838, §§ 35, 50, pp. 4979-4980, 4997.) Thus, they were in effect when the .26 report was written and filed with the court, and when the court held the .26 hearing and made the order for legal guardianship. The juvenile court simply failed to make the requisite detriment finding, supported by testimony from an expert not in the employ of the Department.
We note that rule 5.664(i) tracks the language of section 367.1: “The court may not order foster care placement of an Indian child, or establish a guardianship of an Indian child, unless the court finds by clear and convincing evidence that continued custody with the parent or Indian custodian is likely to cause the Indian child serious emotional or physical damage. [¶] (1) Testimony by a qualified expert witness is required.” This rule was also in effect at the time the .26 report was written and filed, and when the juvenile court held the .26 hearing and ordered the guardianship.
Rule 5.664(i) was repealed and replaced by rule 5.485(a) effective January 1, 2008. We discuss the rule that was in effect at the time of the juvenile court’s ruling.
The Department seems to make two basic points. First, the Department argues that section 361.7 only applies to guardianships ordered at the disposition hearing, when the parent refuses reunification services. (§ 360, subd. (a).) The Department presents no compelling authority for this interpretation, which is inconsistent with the plain language of section 361.7 and rule 5.664(i). The Department also suggests that the statute and rule do not apply here because the guardianship did not place K.L. in a nonIndian home, but in a tribally approved, and thus culturally appropriate, placement. But the statute and rule make no such exception, and apply to all guardianships of Indian children. No matter whether the placement with the guardian is tribally approved, the juvenile court must make the finding that continued custody by the parent would harm the Indian child.
Second, the Department argues that the detriment findings made after the disposition hearing (in October 2005) and at the 12-month review hearing (on December 7, 2006), which were not challenged on appeal or by writ, are controlling and require us to affirm. But, by the plain language of section 361.7 and rule 5.664(i), the juvenile court was required to make an appropriate detriment finding when it ordered the legal guardianship. That is, the court had to find—with the input of the testimony of a qualified expert witness, who would typically testify at the .26 hearing for a permanent plan—that continued custody with the parent or Indian custodian was likely to cause the child serious physical or emotional damage. The detriment finding had to be made concurrently with the guardianship order.
We recognize that there is authority from the Fourth District to the contrary in a different factual setting under different circumstances. In In re Matthew Z. (2000) 80 Cal.App.4th 545, 552-555, the court held that a detriment finding could be made at the final review hearing and not be repeated at the .26 hearing, so long as there was no change in circumstances and the time between the hearings was not substantially longer than 120 days.
III. DISPOSITION
The order for a legal guardianship is reversed, and the cause is remanded to the juvenile court for further proceedings consistent with this opinion.
We concur: Stein, J., Margulies, J.