Opinion
F073870
02-21-2017
In re ALYSSA T. et al., Persons Coming Under the Juvenile Court Law. FRESNO COUNTY DEPARTMENT OF SOCIAL SERVICES, Plaintiff and Respondent, v. MARK T., Defendant and Appellant.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 13CEJ300218)
OPINION
THE COURT APPEAL from orders of the Superior Court of Fresno County. Brian M. Arax, Judge. Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant and Appellant. Daniel C. Cederborg, County Counsel, and Brent C. Woodward, Deputy County Counsel, for Plaintiff and Respondent.
Before Kane, Acting P.J., Detjen, J. and Peña, J.
-ooOoo-
Mark T. (father), the father to Alyssa T. and Michael T., appeals from the juvenile court's orders issued at the selection and implementation hearing held pursuant to Welfare and Institutions Code section 366.26. At this hearing the juvenile court ordered tribal customary adoption (TCA) as the permanent plan. Father argues the juvenile court did not follow the statutorily mandated procedures, and the matter requires reversal. The Fresno County Department of Social Services (the department) concedes error occurred and reversal is required. We agree and will reverse the orders issued at the hearing and remand the matter to permit the juvenile court to conduct another selection and implementation hearing.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
FACTUAL AND PROCEDURAL SUMMARY
The issue in this case does not require a lengthy factual summary. A petition was filed after three-year-old Alyssa was found playing unsupervised outside of the family home, and 17-month-old Michael was found unsupervised inside the home. Alyssa had apparently climbed out of a broken window, and when authorities arrived, Michael was attempting to climb out the same window. Father had fallen asleep without making arrangements for anyone to supervise the children. The mother had apparently left the family and was living elsewhere.
The second amended petition alleged the children came within the jurisdiction of the juvenile court because there was a substantial risk the children would suffer serious physical harm or illness as a result of father's failure or inability to supervise or protect the children, and because father failed to provide regular care for the children because of substance abuse.
The petition also included an allegation against mother which was later stricken by the juvenile court. --------
The juvenile court detained the children, found it had jurisdiction, and at the disposition hearing ordered both parents be provided with reunification services.
Father, mother and the children were promptly identified as enrolled members of the Big Sandy Band of Mono Indians. The juvenile court recognized the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.) applied, and the tribe actively participated in the action.
At the six-month review hearing, reunification services to mother were terminated. Father's reunification services were terminated on July 16, 2015, and the matter was set for a selection and implementation hearing pursuant to section 366.26 (the § 366.26 hearing).
The 366.26 hearing was continued on several occasions for a variety of reasons. The recommendation throughout was TCA pursuant to sections 366.24 and 366.26, subdivision (b)(2). On May 24, 2016, the juvenile court ordered TCA as the permanent plan without terminating the parental rights of mother or father.
DISCUSSION
Father does not contend the trial court erred in terminating reunification services, nor does he argue the permanent plan of TCA was erroneous. His only argument is that in making its order the juvenile court failed to comply with the procedure required by governing statutes.
TCA is codified in section 366.24. Subdivision (a) of this section defines a tribal customary adoption as an "adoption by and through the tribal custom, traditions, or law of an Indian child's tribe." Termination of parental rights is not required when a juvenile court chooses TCA as a permanent plan. (§ 366.24, subd. (a).) We recently explained the purpose and general procedure to be followed in a TCA in In re Sadie S. (2015) 241 Cal.App.4th 1289.
"TCA has been an alternative placement plan for Indian children in California since July 2010. [Citations.] TCA 'is an alternative to a standard adoption and protects both the Tribe's and the child's interests in maintaining tribal membership by formalizing an adoption by an individual selected by the Tribe without terminating parental rights.' [Citation.] The Legislature provided for TCA's in part because: '"[T]he termination of
parental rights which is currently a prerequisite to adoption of a child is 'totally contrary to many tribes' cultural beliefs and it is, in fact, associated with some of the most oppressive policies historically used against tribes and Indian people ...[.]' By contrast, historically and traditionally, most tribes have practiced adoption by custom and ceremony. In addition, the termination of parental rights can disrupt the child's ability to be a full member of the tribe or participate fully in tribal life."' [Citation.] In a TCA, the adoptive parents may be ordered to provide the child with opportunities to participate in tribal culture. [Citation.]
"Section 366.24 sets forth the procedures to institute a TCA as an alternative permanent plan for Indian children. First, the assessment report for the selection and implementation hearing must address the TCA option. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (b).) If the tribe decides that TCA is the appropriate alternative, the tribe or its designee conducts a home study prior to approval of the TCA placement. (§ 366.24, subd. (c)(1), (2) & (3).) This assessment and the TCA order from the tribe should be completed and filed with the juvenile court prior to the selection and implementation hearing. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (c)(6).) However, if necessary, the juvenile court may continue the selection and implementation hearing to permit the tribe to complete the process. (§ 366.24, subd. (c)(6).) The child, birth parents, or Indian custodian and the TCA parents and their counsel may present evidence to the tribe regarding the TCA and the minor's best interest. (§ 366.24, subd. (c)(7).) Once the juvenile court affords full faith and credit to the TCA order, the child is eligible for TCA placement. (§ 366.24, subd. (c)(8).) After the order has been afforded full faith and credit, the TCA parents file an adoption petition. (§ 366.24, subd. (c)(12).) Following required reports to the court, a period of supervision, and a final decree of adoption, the TCA parents have the same rights as any other adoptive parent and the court terminates jurisdiction over the child. (§ 366.24, subd. (c)(12), (13) & (14).)
"Consideration of TCA is not required under the ICWA, but it is required by state law enacted pursuant to the ICWA's authorization to states to provide a higher standard of protection than the rights provided under the ICWA. [Citation.] The requirement that the court afford the TCA order full faith and credit does not place a restriction on the court's discretion to select the most appropriate permanent plan. Rather, the reference to full faith and credit provides the rationale and authorization for effecting an adoption without terminating parental rights, should the court select TCA as the permanent plan. [Citation.] Normally adoption cannot be effected unless and until parental rights are terminated. [Citation.] By giving full faith and credit to the TCA order, a legal basis is created for recognizing the TCA despite the failure to terminate parental rights.
[Citation.]" (In re Sadie S., supra, 241 Cal.App.4th at pp. 1295-1296, fn. omitted.)
The department concedes reversal is required because the juvenile court failed to follow the statutory mandated procedures for a TCA. Specifically, the juvenile court ordered a TCA as the permanent plan at the selection and implementation hearing even though the tribe had not completed a home study assessment nor issued a TCA order. Instead, the juvenile court attempted to give full faith and credit to whatever TCA order the tribe may issue in the future.
Not only is attempting to grant full faith and credit to an order that does not exist potentially dangerous since the juvenile court does not know what may be included in the order, we are not aware of any authority permitting a grant of full faith and credit to an order not presently existing. (E.g., Code Civ. Proc., § 1913, subd. (a) ["the effect of a judicial record of a sister state is the same in this state as in the state where it was made"].) Regardless, reversal is required because the juvenile court erred when it ordered TCA as the permanent plan when the tribe had not yet issued a TCA order.
DISPOSITION
The orders issued at the section 366.26 hearing are vacated and the matter is remanded to the juvenile court to conduct a section 366.26 hearing.