Opinion
E069675
07-11-2018
In re L.S. et al., Persons Coming Under the Juvenile Court Law. SAN BERNARDINO COUNTY CHILDREN AND FAMILY SERVICES, Plaintiff and Respondent, v. A.M. et al., Defendants and Appellants.
Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant A.M. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant W.N. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Michelle D. Blakemore, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.Nos. J259980, J259981, J259982 & J259983) OPINION APPEAL from the Superior Court of San Bernardino County. Annemarie G. Pace, Judge. Affirmed. Liana Serobian, under appointment by the Court of Appeal, for Defendant and Appellant A.M. Karen J. Dodd, under appointment by the Court of Appeal, for Defendant and Appellant W.N. Lauren K. Johnson, under appointment by the Court of Appeal, for Defendant and Appellant J.S. Michelle D. Blakemore, County Counsel, and Kristina M. Robb, Deputy County Counsel, for Plaintiff and Respondent.
I
INTRODUCTION
A.M. (Mother) had a history of abusing drugs and engaging in domestic violence, resulting in the removal of her four children: 10-year-old twins, A.N. and An.N., four-year-old V.S., and three-year-old L.S. J.S. (Father J.S.), the father of V.S. and L.S., also had a history of abusing drugs and engaging in domestic violence with Mother. W.N. (Father W.N.), the father of A.N. and An.N., had failed to properly care for and protect his children. After over two years of reunification services, Mother could not overcome the issues that led to the dependency proceedings and parental rights were terminated. Mother and Fathers J.S. and W.N. appeal from the juvenile court's order terminating their parental rights pursuant to Welfare and Institutions Code section 366.26 and selecting adoption as the permanent plan for their children.
Both fathers were denied reunification services.
All future statutory references are to the Welfare and Institutions Code unless otherwise stated.
The children all fall within the definition of an Indian child, and as such the requirements of the Indian Child Welfare Act (ICWA) and state law provisions concerning Indian children apply. On appeal, the parents challenge the juvenile court's determination not to proceed with tribal customary adoption, and further contend the court and the San Bernardino County Children and Family Services (CFS) failed to comply with the procedures set forth for tribal customary adoptions. For the reasons explained below, we affirm the judgment.
The only legal arguments asserted on appeal are found in Mother's brief. Fathers J.S. and W.N. simply join in Mother's arguments.
II
FACTUAL AND PROCEDURAL BACKGROUND
The family came to the attention of CFS on March 29, 2015, when a referral was received alleging general neglect by Mother of her four children. At that time, L.S. was a couple of days old, V.S. was a year old, and twins A.N. and An.N. were seven years old. L.S. had tested positive for amphetamines a couple of days after he was born. Mother had tested negative.
On April 1, 2015, CFS investigated the referral at Mother's home. The home had running water, gas, and electricity. However, most of the windows were boarded up and broken, the bathroom did not have a door, and there was minimal food in the home. The children did not report any concerns when interviewed, although it was apparent the older children needed dental care. Mother denied allegations of substance abuse. Nonetheless, she failed to drug test on April 2, 2015, as requested by the social worker. Mother disclosed severe domestic violence incidents between her and her husband, Father J.S., for the past two years. Mother reported Father J.S. hit her while she was pregnant and most of the windows in the home were broken due to their fighting. Mother also stated she was tired of the relationship and wanted to get out. Father J.S. was arrested for domestic violence, and he was in jail at the time of the interview. Mother had an active restraining order against Father J.S. since September 2013, but she had not been following the restraining order. Father J.S. had a lengthy criminal history, involving numerous arrests for battery and domestic violence.
The social worker visited Mother again on April 20, 2015, at which time hickeys were observed on Mother's neck. Mother indicated Father J.S. had been released from custody and they were trying to work things out. During the interview, Mother indicated she was Native American and was a registered member of a tribe. Mother reported that she did not want to reside on the reservation and that was why she had not sought help from her tribe.
The children were detained on April 21, 2015, after the social worker obtained a warrant to detain the children. Two relatives were assessed for emergency placement—paternal grandfather of V.S. and L.S., and maternal aunt K.M. Both homes were denied for placement as there were concerns about the safety of the homes. An.N., A.N., and V.S. were placed together in one foster home, and L.S. was placed in a separate foster home.
On April 23, 2015, petitions were filed on behalf of the children pursuant to section 300, subdivisions (b) (failure to protect) and (j) (abuse of sibling). The petitions as to L.S. and V.S. alleged they came within section 300, subdivision (b) (failure to protect), based upon domestic violence between Mother and Father J.S., substance abuse as to both parents, and Father J.S.'s criminal history. The petition additionally alleged the children came within subdivision (j) based upon Father J.S.'s failure to reunify with the children's half sibling, resulting in the termination of his parental rights on March 25, 2015. The petitions as to An.N. and A.N. alleged they came within section 300, subdivision (b) (failure to protect), due to Mother engaging in domestic violence with Father J.S., her substance abuse problem, and her criminal history. The petitions also contained allegations concerning Father W.N., his questionable ability to parent and provide support, as well as leaving the entrustment of the children to Mother's care thereby placing them at risk of harm.
The detention hearing was held on April 24, 2015, at which time the children were formally removed from parental custody. In addition, on that day, Mother filed a Parental Notification of Indian Status form indicating she was a member of the Gila River Tribe.
The social worker recommended the allegations in the petitions be sustained, reunification services be provided to Mother, and no reunification services be provided to Fathers J.S. and W.N. The social worker reported that An.N. and A.N. were registered members of the Maricopa Indian Tribe in Arizona, and that V.S. and L.S. were eligible for membership. During an interview, An.N. reported witnessing domestic violence altercations between Mother and Father J.S., and stated " 'he is mean, that's why I don't like him.' " She further asserted that Father J.S. was mean to Mother, A.N., and V.S. when she cried, and that he would hit them and his son. She further stated " 'he gets mad and crazy and then he leaves.' " On one occasion, An.N. was awoken when she heard Mother screaming. She and her brother A.N. then got out of bed and saw Mother with blood coming out of her head. An.N. recalled that Mother " 'looked like Bloody Mary.' " When interviewed, A.N. also provided details concerning the domestic violence between Mother and Father J.S. A.N. reported that he did not feel safe with Mother due to all the fighting.
Mother was drug tested on April 21 and 24, 2015, both of which were positive for amphetamines. Mother did not have any drug-related arrests, but had three alcohol-related arrests. The social worker attempted to interview all three parents but was unable to get in touch with any of them. An.N., A.N. and V.S. were adjusting to their placement and liked their foster parents. L.S. also adjusted well to his foster home. Regarding relative placement, the maternal aunt's home was denied for safety reasons due to multiple broken windows in the bedrooms and other safety hazards in the home. The maternal aunt withdrew her request for placement and indicated she would be relocating and resubmitting her request.
A pretrial settlement conference was held on June 8, 2015. At that time, a representative from the Gila River Tribe (the Tribe) appeared and submitted an oral motion for the Tribe to intervene. The motion was granted.
In July 2015, the social worker reported that although Mother was referred to both domestic violence and substance abuse services, she failed to participate in either one. Father J.S. failed to participate in services as well. Mother failed to drug test on numerous occasions and tested positive once and negative once. Father J.S. tested once, and the results were positive for drugs.
The paternal grandfather of L.S. and V.S. requested placement. However, the Relative Assessment Unit (RAU) process was still pending as incomplete packets were submitted. Despite sending additional requests for information, the paternal grandfather had failed to respond.
The contested jurisdictional/dispositional hearing was held on July 24, 2015, and was attended by the Tribe's representative. The juvenile court found the allegations in the petitions true, ordered reunification services for Mother, and denied reunification services for both the fathers.
By the six-month review hearing, the social worker recommended that the children remain in their placements and services be continued for Mother. Mother had completed a domestic violence program, but made minimal progress in her other services. Mother and Father J.S. visited with the children and the children appeared to enjoy their visits. The children remained in their placements, both of which were concurrent planning placements.
The juvenile court continued Mother's reunification services at the January 25, 2016 six-month review hearing.
By the 12-month review hearing, the social worker recommended that services for Mother be terminated and that a section 366.26 hearing be set to establish a permanent plan of adoption for all four children. During the reporting period, Mother had continued to test positive for alcohol, methamphetamine, and amphetamine, and she failed to participate in an outpatient substance abuse program. However, Mother and Father J.S.'s visitation with the children continued to go well.
An.N. and A.N. remained in their concurrent planning placement and had adjusted well. They were very bonded to their foster parents, and the other children in the home. Both children stated that they desired to stay with their foster parents. V.S. and L.S. had been moved to their paternal aunt's home (K.S.). By the time of the 12-month review hearing, they had been residing with K.S. for about a month. They appeared to be adjusting appropriately. K.S. had expressed an interest in having An.N. and A.N. placed with her, but the children had no relationship with her and did not want to be placed with her. In May 2016, a maternal cousin stated that she was interested in placement of An.N. and A.N. The social worker noted that the maternal cousin lived in Las Vegas and that an Interstate Compact on the Placement of Children (ICPC) would need to be ordered to assess her home.
At a hearing on June 3, 2016, the court authorized an ICPC to be initiated with Nevada to evaluate the maternal cousin's home.
On July 7, 2016, the social worker informed the court that an ICPC had been initiated for the maternal cousin. However, An.N. and A.N. stated that they did not want to live with the maternal cousin because they would not feel safe living with her. They believed the maternal cousin would allow Mother and Father J.S. to come to the house, and they were afraid of Father J.S. because he used to hit Mother and them. The social worker additionally sent a referral to the RAU for K.S. to be evaluated for placement of An.N. and A.N. The children expressed that they did not want to live with K.S. because she was Father J.S.'s sister, and they were afraid she would let him come to their home. The children did not want to be around Father J.S. The social worker also informed the court that on June 30, 2016, she had submitted a request to the Central Placement Unit requesting information on any available Native American placements. The social worker had interviewed An.N. and A.N. twice since the prior court hearing on June 3, 2016, and they continued to state that they wanted to remain with their foster parents and be adopted by them. Both children were referred to individual therapy as they had started worrying about where they would be living in the future.
The contested 12-month review hearing was held on July 8, 2016. The Tribe representative appeared and indicated to the court the preference of the Tribe was to pursue family placement of An.N. and A.N. County Counsel reported that it did not appear there were any Indian homes available, but they were checking. County Counsel also noted that CFS would follow up on possible placement with K.S. County Counsel further indicated her understanding that the Tribe was looking into the possibility of tribal adoption or possibly taking jurisdiction of the case, but it had not been decided. The court ordered paternal grandmother, R.N., to be assessed for placement.
On July 20, 2016, the social worker reported to the court that she had reached out to the paternal grandmother, R.N., who had previously been unknown to CFS, regarding placement. The social worker, however, had not heard back from R.N.
At the further 12-month review hearing on July 21, 2016, County Counsel informed the court that R.N. was in court and that CFS intended to initiate the RAU process for her upon her contacting the social worker. The Tribe representative appeared by telephone and had nothing to add to the comments. The court ordered services for Mother to continue with her participation in an inpatient substance abuse program.
By the 18-month review hearing, the social worker recommended that reunification services be terminated and a section 366.26 hearing be set to establish a permanent plan of adoption. Mother was participating in an inpatient substance abuse program, but would not complete the program until after the 18-month hearing date. Mother was doing well in her inpatient substance abuse program, but in the program, she was monitored 24 hours a day, seven days a week. Unfortunately, Mother had not transitioned back into the Community successfully or shown that she could maintain her sobriety outside of her inpatient substance abuse program. Mother waited until 15 months after the children were removed from her care to seek help with her substance abuse issues, leaving very little time for her to complete services. Mother visited with the children weekly at her inpatient program with K.S. supervising the visits with Mother and the two younger children. The visits went well overall, although the visitation monitor for An.N. and A.N.'s visits reported that sometimes the children appeared to be afraid of Mother. Father J.S. visited with L.S. and V.S. weekly and the visits were consistent and positive.
An.N. and A.N. remained placed with their foster parents and stated they wanted to be adopted by them, if they could not go home to Mother. However, the social worker continued to seek other placements. On July 25, 2016, the social worker spoke with paternal grandmother R.N. about placement of An.N. and A.N. in her home. Following the interview, it was determined that R.N. did not have adequate housing to have the children placed with her, in that she currently slept on the couch of a two-bedroom apartment that she shared with her two adult daughters, their boyfriends, and children. R.N. indicated that she would contact the social worker if her living situation changed. On September 7, 2016, the ICPC request for the maternal cousin was denied due to non-compliance. On July 7, 2016, the Central Placement Unit found one Native American home, but the home did not have openings for any additional children as there were currently five other children placed in the home. On September 13, 2016, K.S.'s home was approved for placement of An.N. and A.N. However, the children continued to state that they did not want to be placed with K.S., and began crying when the social worker spoke to them about living there. V.S. and L.S. remained placed with K.S. and were doing well in the home.
The October 19, 2016 18-month review hearing was continued to allow County Counsel time to discuss revising the recommendation with CFS, and to allow Mother time to complete her inpatient program.
On November 14, 2016, the social worker reported that Mother had finished her inpatient program on November 1, 2016, and that her case manager reported Mother " 'made positive progress in her treatment.' " Mother was referred to an outpatient program to continue her recovery. CFS revised the recommendation to request an additional six months of services for Mother. The social worker, however, noted that Mother's whereabouts were unknown since her release from her inpatient program.
At the November 15, 2016, further 18-month review hearing, the juvenile court ordered additional services for Mother. During the hearing, the Tribe representative raised the issue of An.N. and A.N. not being in an ICWA compliant placement. The court indicated that would not be an issue if the children were returned to Mother.
By the 24-month review hearing, the social worker recommended Mother's reunification services be terminated and a section 366.26 hearing be set to establish a permanent plan of legal guardianship for An.N. and A.N. and adoption for V.S. and L.S. An.N. and A.N. remained placed in their foster home, and V.S. and L.S. remained placed with K.S. During the reporting period, Mother continually failed to drug test, testing on only one occasion. In addition, she was terminated from her outpatient substance abuse programs on two occasions due to poor attendance and failed to participate in a 12-step program. Furthermore, Mother stated to An.N. that she knew where the foster home was located and had moved to the same neighborhood, causing the foster parents and the children concern. An.N. and A.N. had a difficult time during the reporting period as they remained concerned about where they would live. They also reported that Mother and Father J.S. were a couple again. They worried Mother and Father J.S. would start causing problems for their foster parents and try to take them away. The children reportedly loved their foster home and wanted to remain there.
All four children continued to visit with Mother, and their visits were supervised by K.S. and a foster family agency worker. During the reporting period, Mother had missed a number of visits and was required to call to confirm each visit. An.N. stated to the social worker that she no longer wanted to visit with Mother and did not want to see her any longer. A.N. requested that visits be reduced, but indicated he would like to see Mother sometimes. Father J.S. continued to visit with his children, although he missed a number of visits and was required to call to confirm. The visits that occurred went well, and Father J.S. was reportedly affectionate during the visits.
V.S. and L.S. adjusted well to their placement with K.S., who held the educational rights for both children and was willing to adopt them. They appeared very comfortable with K.S. and were attached to her. The social worker noted that there were no relatives able to provide placement for An.N. and A.N., although K.S. was cleared for placement of the children.
On June 27, 2017, the social worker recommended that parental rights be terminated and the permanent plan of adoption be selected for all four children. The social worker met with An.N., A.N. and their foster parents on June 1, 2017, at which time the children stated they wanted to be adopted by their foster parents. The foster parents were in agreement, and stated that they were not interested in a tribal customary adoption. V.S. and L.S. remained placed with K.S., where they had been placed since April 5, 2016. They were thriving in K.S.'s home. K.S. was very interested in adopting the children, but was not interested in a tribal customary adoption. There continued to be no relative placements available for An.N. and A.N., and no Indian homes available for placement. The children continued to state they wanted to be adopted by their foster parents and not be placed with K.S.
The contested 24-month review hearing was held on June 27, 2017. At that time, Mother and Father J.S. objected to the recommendation to terminate services and set a section 366.26 hearing. The Tribe also objected, stating it was not in keeping with the practices of the Indian Community, and indicated the request for a tribal customary adoption for V.S. and L.S. As to An.N. and A.N., the Tribe requested that placement with the paternal grandmother, R.N., be revisited because the children were not in an ICWA compliant placement. R.N. was present at the hearing, and asked if she was in a position to care for the children. She indicated yes, but that her place would not be ready until Friday. She was directed to be in touch with the social worker if she would like to request placement. An.N. asked to speak at the hearing, and told the court she did not want to go back to Mother or the paternal grandmother. She felt the paternal grandmother was going to allow family visits, which An.N. did not want. Following further argument, the court found active efforts had been made and that good cause existed for the non-ICWA placement of An.N. and A.N. The court terminated Mother's reunification services and set a section 366.26 hearing.
In a section 366.26 report dated October 25, 2017, the social worker recommended that parental rights be terminated and the permanent plan of adoption be implemented. All four children were placed together in the home of K.S. An.N. and A.N. were moved to K.S.'s home on September 5, 2017, and appeared to be adjusting well. An.N. and A.N. had come to know K.S. very well through supervised weekly visits, and they had become attached to her. An.N. and A.N. were happy to be united with their younger siblings and wanted K.S. to adopt them.
The contested section 366.26 hearing was held on December 13, 2017. At that time, the Tribe's expert witness, A.E., social worker K.H., K.S., Father J.S., An.N., and A.N. testified. A.E. testified that she was familiar with the case, that she had met all the children and their caretaker K.S., and that she had communicated with the different social workers on the case. She further testified that in her opinion, active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family. According to A.E., the children's current placement met the preferences under ICWA, and return of the children to any of the three parents would cause them serious emotional and/or physical harm. A.E. also stated that severance and adoption was not consistent with cultural practices and traditions of the Gila River Indian Community as the Community did not believe in breaking the bond between parent and child. A.E. also explained that it had a negative symbolic effect when it came to the relationship of the children to the Community. The Community practiced tribal customary adoptions, which A.E. described as putting "a permanent hold on the parental rights. They don't legally sever their rights. They put a permanent hold on the rights of the biological parent. And the adoptive parent would carry on the same responsibilities and have the same rights as a traditional severance and adoption case plan and adoption, versus the name would be changed on the birth certificate, et cetera. They would have the same level of traditional severance and adoption." A.E. noted that the Tribe favored tribal customary adoption because "it doesn't have the legal severance" of parental rights but a "permanent suspension of parental rights." A.E. acknowledged that tribal customary adoption was offered in the case, but it was not followed because K.S. did not want to proceed with the tribal customary adoption. A.E. further testified that the Community was in favor of more time for the parents but was not sure of how much more time would be needed. A.E. explained, "This case has gone on for two and a half years. The kids are together in a good place at this time. And I think . . . as a case manager, it would appear that there could be possible disruption if the case is open any longer." A.E. also stated that she had discussed tribal customary adoption with K.S. in April 2017, and was informed by the social worker after their discussion that K.S. was not interested in a customary adoption. A.E. felt that K.S. would continue to involve the children in tribal activities. Nonetheless, A.E. believed that it would be in the children's best interest if it was a tribal customary adoption as opposed to a severance of parental rights.
Social worker K.H. testified that she had been the social worker in the case since right after the jurisdictional/dispositional hearing, and she transitioned with the case as the adoption worker. K.H. stated that An.N. and A.N. had to be removed from their foster parents due to a request for removal by the foster parents. Prior to placement in K.S.'s home, the children had indicated they did not want to live with her, as they were afraid K.S. would not protect them from her brother, Father J.S. The children's viewpoint had changed after they saw that they could be safe with her. K.H. disagreed with A.E.'s testimony that it would be in the children's best interest to have a tribal customary adoption, because K.S. was willing to keep the children connected with their tribe. K.H. also stated that K.S.'s preference was to proceed with the adoption and no longer have court involvement. She further testified that it was CFS's preference to implement the most permanent plan possible. When asked if she made statements to K.S. about tribal customary adoption, she indicated that she had used information emailed to her by County Counsel. She believed it was a less permanent plan because the parents were still involved and indicated she never received information from the Gila River Indian Community directly regarding tribal customary adoption. K.H. also testified that she was in contact with the Tribe on a regular basis and none of that information was provided to her. She did not ask for the information to present to K.S., but knew the Tribe had been out to visit her a couple of times, and assumed K.S. had received information from the Tribe. When she spoke with K.S., she was under the impression the Tribe had discussed the information regarding tribal customary adoption with her.
The reports did not indicate why removal was requested, but in later testimony by K.S., she stated that the foster mother had informed her the foster family was "terrified" of Mother and had asked if K.S. would take the children.
K.S. testified that the Tribe had visited her on two occasions, and on the second occasion they discussed tribal customary adoption with her. They discussed with her that she would be the foster mother, and Mother's rights would not be severed. If there was an issue, Mother could go to the Tribe and they would discuss it. K.S. informed the tribal representative that she desired permanent adoption of the children. K.S. also informed the Tribe that services for the children would continue through the county, and the tribal representative said okay and that was it. She further testified that she attempted to contact the Tribe and left a couple messages, but the calls were never returned. She wanted to inform them again that she was not interested in tribal customary adoption. She planned to make sure the children continued to have ties to the tribal community and to take the children to visit the Tribe in Arizona. K.S. had discussed adoption with the children and asked if they wanted to be adopted. The children responded that they wanted to stay with her.
An.N. testified that she liked living with K.S. and that she wanted K.S. to be her mother. While living with her mother, she was not treated right and she was hurt. She did not want to live with her mother any longer. A.N. testified that he wanted to be adopted by K.S. He liked living in K.S.'s home and did not want to see his mother anymore.
After testimony concluded, counsel presented argument. The Tribe representative objected for the record to the severance and adoption case plan, as well as, "to the characterization that a tribal customary adoption is less permanent than a severance adoption," but indicated "the Community will leave it in the discretion of the placement to make that decision," noting K.S. had "stated her wish on the record to have a severance adoption." The Tribe representative further stated, "We do believe that it has been explained to her by the ICWA case manager, at least what is a tribal customary adoption. And we are very confident in the placement's ability to meet the children's needs." The Tribe representative also noted, "The Community is not objecting to the active efforts findings made. The placement is an ICWA compliant placement and the Community is in agreement with the placement and does believe that the placement has all capability of meeting the children's needs and looking out for their best interest."
Following further argument, the court found the following: "With respect to the ICWA findings, the tribal expert, [A.E.], essentially provided evidence beyond a reasonable doubt that continued custody of the children by the parents is likely to result in serious emotional or physical damage to the child. [¶] She also testified, and I found credible, that active efforts were made beyond a reasonable doubt by CFS to reunify with the children. [¶] When it comes to the issue of the tribal customary adoption versus adoption through this court, while the Tribe officially objected, they also submitted. And on the preference of the prospective adoptive parent, who, herself, testified, and testified why her preference was to go through the County; and I think that was a reasonable choice on her part. [¶] And she has also testified that, regardless of her choice, she would attempt to ensure that the children have contact with the Tribe, and essentially maintain their heritage. And I found that to be credible. [¶] But, regardless, I think it is her choice to make in this case, given that she has essentially been the parental figure for the [S.] children for a significant portion of their very young lives, and has had continued contact with the [N.] children through sibling visits and now months of placement, and has provided excellent care for all of the children." The court then found no exceptions to the termination of parental rights, terminated parental rights, and selected adoption as the permanent plan for all four children. This appeal followed.
III
DISCUSSION
Mother argues the juvenile court erred, as a matter of law, in failing to order a tribal customary adoption because "a caretaker's preference for a regular adoption, on which the court relied to deny the exception, does not override the federal and state laws protecting Indian children and ensuring their continued tribal rights and connections." In the alternative, Mother asserts that insufficient evidence supports the court's order in proceeding with terminating parental rights and adoption because "the caretaker was misinformed and lacked understanding of what a tribal customary adoption entailed." She further contends that the court and CFS failed to comply with the tribal customary adoption procedures set forth by the Legislature in section 366.24 and California Rules of Court, rule 5.725(d)(8). She therefore believes a reversal is required with instructions to the juvenile court to implement a tribal customary adoption.
Both fathers join in Mother's arguments.
CFS responds that Mother forfeited any challenge to the assessments and findings. In the alternative, CFS claims any error was harmless and the juvenile court did not err in declining to require a tribal customary adoption.
A. Tribal Customary Adoption Procedures
A " 'tribal customary adoption' " is an "adoption by and through the tribal custom, traditions, or law of an Indian child's tribe" that does not require termination of parental rights. (§ 366.24, subd. (a)(1).) Tribal customary adoption "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." (In re A.M. (2013) 215 Cal.App.4th 339, 348 (A.M.); accord, In re I.P. (2014) 226 Cal.App.4th 1516, 1525 (I.P.).) Tribal customary adoption has been an alternative placement plan for Indian children in California since July 2010. (See In re H.R. (2012) 208 Cal.App.4th 751, 759 (H.R.).) The Legislature provided for tribal customary adoptions in part because " 'termination of parental rights can disrupt the child's ability to be a full member of the tribe or participate fully in tribal life.' " (H.R., at p. 761.) In a tribal customary adoption, the adoptive parents may be ordered to provide the child with opportunities to participate in tribal culture. (See id. at p. 757.)
"Section 366.24 sets forth the procedures to institute a [tribal customary adoption]. First, the assessment report for the selection and implementation hearing must address the [tribal customary adoption] option. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (b).) If the Tribe decides that [tribal customary adoption] is the appropriate alternative, the Tribe or its designee conducts a home study prior to approval of the [tribal customary adoption] placement, including a check of the Child Abuse Central Index and state and federal criminal background checks. (§ 366.24, subd. (c)(1), (2), & (3).) This assessment and the [tribal customary adoption] order from the Tribe should be completed prior to the selection and implementation hearing and the [tribal customary adoption] order should be filed with the court prior to the selection and implementation hearing. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (c)(6).) However, if it is not and the Tribe has identified [tribal customary adoption] as the desired permanent placement plan, the juvenile court may continue the selection and implementation hearing for up to 120 days to permit the Tribe to complete the process for [tribal customary adoption] and file the [tribal customary adoption] order with the juvenile court. (§ 366.24, subd. (c)(6).) The juvenile court has discretion to continue the hearing for an additional 60 days to complete the [tribal customary adoption] process. (§ 366.24, subd. (c)(6).)" (A.M., supra, 215 Cal.App.4th at p. 348; accord, I.P., supra, 226 Cal.App.4th at pp. 1525-1526.)
" 'At the section 366.26 hearing, the juvenile court must find that "the agency consulted with the child's tribe and the tribe was actively involved in the development of the case plan and plan for permanent placement, including consideration of whether tribal customary adoption is an appropriate permanent plan for the child. . . ." (Cal. Rules of Court, rule 5.725(d)(8)(C).) If the court finds that the agency did not consult with the child's tribe, it "must order the agency to consult with the tribe, unless the court finds that the tribe is unable, unavailable, or unwilling to participate." (Rule 5.725(d)(8)(D).)' " (I.P., supra, 226 Cal.App.4th at p. 1526, quoting In re G.C. (2013) 216 Cal.App.4th 1391, 1398 (G.C.); see § 366.24, subd. (f) [requiring Judicial Council to "adopt rules of court . . . to implement tribal customary adoption as a permanent plan for dependent Indian children"].)
B. Standard of Review
Citing In re Esperanza C. (2008) 165 Cal.App.4th 1042, 1058-1059 (Esperanza C.), Mother asserts the de novo standard of review applies. Mother's reliance on Esperanza C. is mistaken. Esperanza C. dealt with whether a court is authorized to perform a certain act in regards to criminal records exemptions. (Id. at p. 1059.)
Here, the abuse of discretion standard is applicable. The court in H.R., supra, 208 Cal.App.4th 751, explained: "Although the statute now modifies the preferred permanent plan for an Indian child, contrary to the tribe's contention, nothing in the 2010 amendments suggests that the Legislature intended to alter the long-standing rule that the selection of a permanent plan is vested in the sound discretion of the trial court. [Citation.] Whether there is a compelling reason not to terminate parental rights has been described as a 'quintessentially discretionary determination.' [Citation.] Nothing in Section 366.24 removes that discretion." (H.R., at p. 764, citing In re Jasmine D. (2000) 78 Cal.App.4th 1339, 1351.)
C. Failure to Comply with Statutory Procedures
Mother argues that reversal is required because the juvenile court and CFS failed to comply with tribal customary procedures. Specifically, she asserts CFS's section 366.26 assessment report did not address the option of tribal customary adoption. She also contends the juvenile court failed to find CFS " 'consulted with the child's tribe and the tribe was actively involved in the development of the case plan and plan for permanent placement, including consideration of whether tribal customary adoption is an appropriate permanent plan for the child.
However, Mother forfeited this argument by failing to assert it in the juvenile court. (I.P., supra, 226 Cal.App.4th at pp. 1525-1526 [the mother forfeited claim that the court failed to order a tribal customary adoption report before it terminated her parental rights as required by the ICWA, Welfare and Institutions Code, and the California Rules of Court]; G.C., supra, 216 Cal.App.4th at pp. 1398-1399 [the father forfeited argument that the court did not consider appropriateness of tribal customary adoption as the minor's permanent plan]; see In re Urayna L. (1999) 75 Cal.App.4th 883, 885-886; In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
" ' "An appellate court will ordinarily not consider procedural defects or erroneous rulings in connection with relief sought or defenses asserted, where an objection could have been, but was not, presented to the lower court by some appropriate method." [Citation.]' " (G.C., supra, 216 Cal.App.4th at p. 1398.) Dependency proceedings are not exempt from the rule of forfeiture. (In re S.B. (2004) 32 Cal.4th 1287, 1293, superseded by statute on another ground as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962; In re Wilford J. (2005) 131 Cal.App.4th 742, 754.) Relevant for our purposes, the courts have found forfeiture when a parent fails to (1) raise in the juvenile court a legal impediment to adoption (In re R.C. (2008) 169 Cal.App.4th 486, 493, fn. 2), (2) object to the complete absence of a statutorily required preliminary assessment of a foster family as prospective guardians (In re Dakota S. (2000) 85 Cal.App.4th 494, 501-502), and (3) object to the adequacy of assessment reports (I.P., supra, 226 Cal.App.4th at p. 1526; G.C., at pp. 1398-1399; In re Urayna L., supra, 75 Cal.App.4th at pp. 886-887; In re Crystal J. (1993) 12 Cal.App.4th 407, 411-412).
But even if the contention had not been forfeited, any failure to address tribal customary adoption by CFS and make specific tribal customary adoption findings by the juvenile court was harmless. Three published cases have considered similar claims, including a case by this court. In I.P., supra, 226 Cal.App.4th 1516, the mother argued reversal was required because the juvenile court, when it set the section 366.26 hearing did not order an assessment of a tribal customary adoption pursuant to section 366.24. (Id. at p. 1526.) We found that the mother had forfeited her claim and that even if the contention had not been forfeited, the error was harmless. (Id. at pp. 1526-1527.) After analyzing A.M., supra, 215 Cal.App.4th 339 and G.C., supra, 216 Cal.App.4th 1391, we concluded that "because the Tribe never identified [tribal customary adoption] as an option, the Tribe and the ICWA expert concurred with CFS's recommendation of adoption with termination of parental rights, and the child would be adopted by a relative tribal member, Mother has failed to show 'a reasonable probability that compliance with the procedural requirements of tribal customary adoption would have resulted in an outcome more favorable to [her].' " (I.P., at pp. 1528-1529, quoting G.C., at p. 1401.)
As we explained in I.P., in A.M., supra, 215 Cal.App.4th 339, the tribe contended on appeal that "[tribal customary adoption] was not addressed in any of the assessments for the selection and implementation hearing." (Id. at p. 350.) At the initial selection and implementation hearing, the trial court had ordered a guardianship and had given the tribe the opportunity to consider tribal customary adoption. (Id. at p. 342.) However, by the time of the second selection and implementation hearing, the tribe had not taken any action to initiate a tribal customary adoption. (Id. at p. 343.)
On appeal, the court found that "[b]ecause there was no tribal order for [tribal customary adoption] before it, the juvenile court had no choice but to consider the traditional alternatives for permanent plans. [Citation.]" (A.M., supra, 215 Cal.App.4th at pp. 349-350.) The court emphasized that "the initial decision whether to pursue [tribal customary adoption] must come from the tribe." (Id. at p. 350.) The appellate court rejected the tribe's contention that the department and the juvenile court were responsible for the "failure to achieve a [tribal customary adoption]." (Ibid.) Although the tribal customary adoption law was new at the time of the dependency proceedings, "the Tribe was well aware that the alternative existed at the time of the first selection and implementation hearing." (Ibid.) Since the record showed that "the [tribal customary adoption] option" had been discussed by the parties, including the tribe, "[a]ny error in failing to include [tribal customary adoption] in the assessment" was harmless. (Id. at p. 351.)
In G.C., supra, 216 Cal.App.4th 1391, the father presented similar claims of error as in this case. He complained that "the selection and implementation report did not indicate the Department had consulted with the Tribe about tribal customary adoption and did not address the option of tribal customary adoption. And the juvenile court did not find the Department had consulted with the Tribe about tribal customary adoption, did not order the Department to do so, and did not consider the appropriateness of tribal customary adoption as a permanent plan." (Id. at p. 1398.)
The G.C. court found the father's claims were forfeited by his failure to object during the juvenile court proceedings, but it also found that any error was harmless. (G.C., supra, 216 Cal.App.4th at p. 1399.) In that case, the mother had Native American heritage, but the father did not, and the child had been placed in a " 'Designated Indian Home.' " (Id. at p. 1395.) By the time of the selection and implementation hearing, the mother intended to relinquish her parental rights. Although the tribe initially did not support termination of parental rights, it informed the juvenile court that in light of the mother's intent to relinquish, it did support adoption and termination. (Id. at pp. 1396-1397.)
In explaining why the procedural errors were harmless, the G.C. court emphasized that "[t]ribal customary adoption is only an option when the child's tribe identifies it as an option. [Citations.]" (G.C., supra, 216 Cal.App.4th at p. 1401.) Although the record did not reflect that the tribe discussed tribal customary adoption with the social worker, the record did reflect that the tribe was involved in the selection of the appropriate permanent plan for the minor. The court had "no reason to speculate that the Tribe was unaware of tribal customary adoption as an alternative permanent plan." (Ibid.) Thus, the father failed to show "a reasonable probability that compliance with the procedural requirements of tribal customary adoption would have resulted in an outcome more favorable to him." (Ibid.)
In the instant case, CFS's section 366.26 report did not specifically address the option of tribal customary adoption. Additionally, the juvenile court did not make specific findings that CFS had consulted with the Tribe, and the Tribe was actively involved in the development of the case plan. Even so, any error was harmless, as in the foregoing cases. In June 2017, the social worker reported K.S. was very interested in adopting the children, but was not interested in a tribal customary adoption. At the contested 24-month review hearing on June 27, 2017, the Tribe requested a tribal customary adoption for V.S. and L.S. and that CFS continue efforts to place An.N. and A.N. with the paternal grandmother, which would have been an ICWA compliant placement. Although the section 366.26 report did not address tribal customary adoption, the issue was adequately addressed at the section 366.26 hearing, clearly evidencing all parties were cognizant of the availability of tribal customary adoption as an option. The Tribe's expert witness A.E. testified on behalf of the Tribe, providing details as to what tribal customary adoption meant versus traditional adoption. A.E. stated tribal customary adoption was offered in this case, but was not followed because K.S. did not want to proceed with a tribal customary adoption. A.E. further testified that she discussed tribal customary adoption with K.S., and felt K.S. would continue to involve the children in tribal activities.
The social worker expressed her disagreement with tribal customary adoption as being in the children's best interest, stating K.S. was willing to keep the children connected to the Tribe. K.S.'s preference was for adoption and for no further court involvement. The social worker further stated that she was in contact with the Tribe on a regular basis and knew the Tribe had visited with K.S., assuming correctly that the Tribe had provided her with information on tribal customary adoption. K.S. testified that the Tribe visited with her twice and discussed tribal customary adoption with her on the second occasion in April 2017. K.S. indicated that she understood what tribal customary adoption entailed and noted, based upon the information provided, Mother's rights would not be terminated and Mother could go to the Tribe to discuss issues that may arise. K.S. stated that she had informed the tribal representative she preferred permanent adoption and that she was planning to make sure the children continued to have ties to the tribal community. K.S. also noted that she was planning to take the children to visit the Tribe in Arizona.
The record is clear that the Tribe was involved in the permanency planning process, K.S. was provided the necessary information regarding tribal customary adoption, and the social worker was aware of K.S.'s decision. On that basis, the failure of the social worker to adequately recite the information again in the section 366.26 report, and the juvenile court to make a specific finding that such occurred, was harmless. Furthermore, although noting an objection of severance and adoption for the record, the Tribe's representative stated "the Community will leave it in the discretion of the placement to make that decision," noting K.S. had "stated her wish on the record to have a severance adoption." The Tribe's representative further asserted, "We do believe that it has been explained to her by the ICWA case manager, at least what is a tribal customary adoption. And we are very confident in the placement's ability to meet the children's needs." The Tribe's representative also noted, "The Community is not objecting to the active efforts findings made. The placement is an ICWA compliant placement and the Community is in agreement with the placement and does believe that the placement has all capability of meeting the children's needs and looking out for their best interest." A tribal customary adoption would have required adoption by a suitable member of the Tribe, i.e., a suitable member of the child's family, or an unrelated member of the Tribe. Here, a plan of adoption by K.S. met these requirements.
In sum, because the record indicates the Tribe was involved in the permanency planning process, K.S. was provided the necessary information regarding tribal customary adoption, the social worker was aware of K.S.'s decision, the Tribe left placement to the discretion of the court, the Tribe was in agreement with placement with K.S., and the children would be adopted by a relative tribal member, Mother has failed to show "a reasonable probability that compliance with the procedural requirements of tribal customary adoption would have resulted in an outcome more favorable to [her]." (G.C., supra, 216 Cal.App.4th at p. 1401.)
D. Termination of Parental Rights and Adoption
Mother also argues that the "the juvenile court's order denying the Indian Child exception to adoption in reliance on the non-Indian caretaker's preference for a regular adoption was a mistake of law and an abuse of its discretion." She asserts that the court erred in terminating parental rights and selecting adoption as the permanent plan for the children because the court "committed a mistake of law when it terminated mother's parental rights in that the tribe had identified tribal customary adoption as the permanent plan for her four Indian children." The specific mistake of law, Mother asserts, was the court's reliance on the caretaker's preference, which Mother believes was an abuse of discretion because it gave the caretaker "veto power over the Legislature's preference to protect Indian children's rights and connection to their tribe."
1. General Principles
"When the juvenile court finds that the child is adoptable, it must terminate parental rights unless it finds one of four specified circumstances in which termination would be detrimental (§ 366.26, subd. (c)(1)(A)-(D))." (In re Brittany C. (1999) 76 Cal.App.4th 847, 852.) Our Supreme Court has instructed that "[t]he specified statutory circumstances—actually, exceptions to the general rule that the court must choose adoption where possible—'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citation.]" (In re Celine R. (2003) 31 Cal.4th 45, 53, italics omitted.)
At issue in the present case is the exception provided by section 366.26, subdivision (c)(1)(B)(vi), which provides: "The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to: [¶] (I) Termination of parental rights would substantially interfere with the child's connection to his or her tribal community or the child's tribal membership rights. [¶] (II) The child's tribe has identified guardianship, foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child. [¶] (III) The child is a nonminor dependent, and the nonminor and the nonminor's tribe have identified tribal customary adoption for the nonminor."
A parent claiming the Indian child exception to termination of parental rights has the burden of proof. (In re C.B. (2010) 190 Cal.App.4th 102, 133.) On appeal, "the abuse of discretion standard governs review." (Id. at p. 123.) More specifically, " 'the trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.' [Citations.]" (Ibid.; see In re A.A. (2008) 167 Cal.App.4th 1292, 1322 ["whether a compelling reason exists under the Indian Child Exception is an issue committed to the trial court as the trier of fact and its discretion to resolve whether, on any statutory grounds, that termination would be detrimental to an otherwise adoptable child"].)
As previously explained, tribal customary adoption has been an alternative placement plan for Indian children in California since July 2010. (Stats. 2009, ch. 287, § 12; see H.R., supra, 208 Cal.App.4th at p. 759.) Tribal customary adoption "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." (A.M., supra, 215 Cal.App.4th at p. 348.)
Section 366.24 sets forth the procedures to institute a tribal customary adoption as an alternative permanent plan for Indian children. "First, the assessment report for the selection and implementation hearing must address the [tribal customary adoption] option. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (b).) If the tribe decides that [tribal customary adoption] is the appropriate alternative, the tribe or its designee conducts a home study prior to approval of the [tribal customary adoption] placement. (§ 366.24, subd. (c)(1), (2) & (3).) This assessment and the [tribal customary adoption] 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 [tribal customary adoption] parents and their counsel may present evidence to the tribe regarding the [tribal customary adoption] and the minor's best interest. (§ 366.24, subd. (c)(7).) Once the juvenile court affords full faith and credit to the [tribal customary adoption] order, the child is eligible for [tribal customary adoption] placement. (§ 366.24, subd. (c)(8).) After the order has been afforded full faith and credit, the [tribal customary adoption] 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 [tribal customary adoption] 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).)" (In re Sadie S. (2015) 241 Cal.App.4th 1289, 1296 (Sadie S.).)
The court in H.R., supra, 208 Cal.App.4th 751 determined that tribal customary adoption is the preferred permanent plan for an Indian child if recommended by the child's Indian tribe. (Id. at p. 761-762.) The court explained, "In stating the order of preference, section 366.26, subdivision (b) thus initially seems to indicate that traditional adoption including the termination of parental rights should be preferred over tribal customary adoption. However, the order of preference as between these two alternatives when the tribe has recommended tribal customary adoption is effectively reversed by qualifications that follow. [¶] Section 366.26, subdivision (b) concludes, 'In choosing among the above alternatives the court shall proceed pursuant to subdivision (c).' Subdivision (c)(1) provides: 'If the court determines . . . by a clear and convincing standard, that it is likely the child will be adopted, the court shall terminate parental rights and order the child placed for adoption. . . . Under these circumstances, the court shall terminate parental rights unless . . . the following applies: [¶] . . . [¶] (B) The court finds a compelling reason for determining that termination would be detrimental to the child due to . . . the following circumstances: [¶] . . . [¶] (vi) The child is an Indian child and there is a compelling reason for determining that termination of parental rights would not be in the best interest of the child, including, but not limited to: [¶] (I) Termination of parental rights would substantially interfere with the child's connection to his or her tribal community or the child's tribal membership rights. [¶] (II) The child's tribe has identified guardianship, long-term foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement for the child.' Section 366.26, subdivision (c)(2)(B)(iii) directs the court not to terminate parental rights in the case of an Indian child if '[t]he court has ordered tribal customary adoption pursuant to Section 366.24.' " (H.R., at pp. 762-763, fn. omitted.)
H.R., supra, 208 Cal.App.4th 751 further explained: "Prior to the 2010 amendments, courts acknowledged that any potential detriment to a child caused by interference with his or her tribal connection 'must be considered in view of the legislative preference for adoption when reunification efforts have failed.' [Citations.] By its reliance on 'tribal custom, traditions, or law of an Indian child's tribe,' tribal customary adoption is designed to provide the minor with the same stability and permanence of traditional adoption without terminating parental rights. Thus, an Indian child's interest in stability and permanence no longer provides a counterbalance to the child's interest in maintaining his or her tribal connection. [¶] The new statutory provisions recognize that the termination of parental rights will normally cause detriment to an Indian child by interfering with his or her tribal connections. These provisions implement the legislative finding and declaration that '[i]t is in the interest of an Indian child that the child's membership in the child's Indian tribe and connection to the tribal community be encouraged and protected, regardless of whether the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding, the parental rights of the child's parents have been terminated, or where the child has resided or been domiciled.' (§ 224, subd. (a)(2); see [also ICWA,] 25 U.S.C. § 1902 ['it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture . . .']; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32-36; In re W.B. (2012) 55 Cal.4th 30, [48];[] In re Desiree F. (2000) 83 Cal.App.4th 460, 469 [ICWA 'presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource'].) [¶] Accordingly, while the statutory construction of section 366.26 places the burden on the party opposing traditional adoption to show that this form of adoption would be detrimental to the minor [citation], the interference with the minor's tribal ties that the Legislature has recognized and sought to avoid provides the prima facie showing of detriment that tips the preference in favor of tribal customary adoption. Absent some evidence of countervailing detriment to the minor that the court, in its discretion, concludes would result from this form of adoption, the default in the case of an Indian child is tribal customary adoption." (H.R., at pp. 763-764.)
California Rule of Court, rule 5.725(d), reflects the addition of tribal customary adoption as an alternative permanent plan, is somewhat clearer in this respect. (H.R., supra, 208 Cal.App.4th at p. 764.) "The rule lists tribal customary adoption as the first alternative when determined by the court to be an appropriate permanent plan for an Indian child." (Ibid.) Specifically, "California Rules of Court, rule 5.725(d) states: 'At the [section 366.26] hearing, the court . . . must proceed as follows: [¶] (1) In the case of an Indian child, after the agency has consulted with the tribe, when the court has determined with the concurrence of the tribe that tribal customary adoption is the appropriate permanent plan for the child, order a tribal customary adoption in accordance with section 366.24; or [¶] (2) Order parental rights terminated and the child placed for adoption if the court determines, by clear and convincing evidence, that it is likely the child will be adopted, unless: [¶] . . . [¶] (C) The court finds a compelling reason to determine that termination would be detrimental to the child because of the existence of one of the following circumstances: [¶] . . . [¶] (vi) The child is an Indian child and termination of parental rights would substantially interfere with the child's connection to his or her tribal community or the child's tribal membership rights, or the child's tribe has identified guardianship, long-term foster care with a fit and willing relative, tribal customary adoption, or another planned permanent living arrangement as the appropriate permanent plan for the child.' " (H.R., at p. 764, fn.6.)
However, "[t]he requirement that the court afford the [tribal customary adoption] 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 [tribal customary adoption] as the permanent plan." (Sadie S., supra, 241 Cal.App.4th at p. 1296, citing H.R., supra, 208 Cal.App.4th at p. 765.)
Section 366.24, subdivision (c)(6), provides that "If the tribe identifies tribal customary adoption as the permanent placement plan for the Indian child, the court may continue the selection and implementation hearing governed by Section 366.26 for a period not to exceed 120 days to permit the tribe to complete the process for tribal customary adoption and file with the court a tribal customary adoption order evidencing that a tribal customary adoption has been completed." (Italics added.) "The phrase '[i]f the tribe identifies tribal customary adoption as the permanent placement plan for the Indian child' does not delegate to the tribe the authority to select the permanent plan. Rather, it recognizes that tribal customary adoption is an available option only when identified as such by the child's tribe." (H.R., supra, 208 Cal.App.4th at p. 765.)
Thus, even if a tribe recommends tribal customary adoption as its preferred plan, a juvenile court is not required to acquiesce to the tribe's preference. (Sadie S., supra, 241 Cal.App.4th at p. 1296; H.R., supra, 208 Cal.App.4th at p. 765.) Moreover, when a prospective adoptive parent indicates his or her wishes, "the juvenile court [is] obliged to consider [his or her] concerns [and wishes]." (H.R., at p. 767.)
2. Analysis
In this case, although the Tribe recommended tribal customary adoption as its preferred plan for the children, the juvenile court was not required to acquiesce to the Tribe's preference. The court was fully aware of the Tribe's recommendation for tribal customary adoption and heard testimony from the Tribe's expert. In addition, the court heard testimony from both the older children, the prospective adoptive parent (K.S.), and the children's social worker. The Tribe's expert A.E. testified that tribal customary adoption was "offered" but not followed because K.S. did not want to proceed with a tribal customary adoption. A.E. further testified that she felt K.S. would continue to involve the children in tribal activities. Although the Tribe's representative objected "for the record" to the severance and adoption case plan, the Tribe's representative stated "the Community will leave it in the discretion of the placement to make that decision. [¶] We do believe that it has been explained to her by the ICWA case manager, at least what is a tribal customary adoption. And we are very confident in the placement's ability to meet the children's needs." Notably, as pointed out by CFS, the Tribe has not appealed the court's order not to follow tribal customary adoption, but to proceed with termination of parental rights and selection of adoption as the permanent plan.
Furthermore, the social worker disagreed that the children's best interest would be served through tribal customary adoption, noting K.S. was willing to keep the children connected with their Tribe, and her preference was to go forward with adoption as the most permanent plan available. K.S. testified that the Tribe's representative had explained tribal customary adoption to her, and that she wanted permanent adoption and had indicated such to the Tribe. She further stated that she planned to make sure the children continued to have ties to the tribal community. An.N. and A.N. both testified stating they wanted to be adopted by K.S.
In rendering its decision not to proceed with tribal customary adoption, the court noted that although the Tribe "officially objected, they also submitted. And on the preference of the prospective adoptive parent, who, herself, testified, and testified why her preference was to go through the County; and I think that was a reasonable choice on her part." The court further recognized K.S.'s indication she would keep the children in contact with the Tribe, which the court found to be credible. In relying on K.S.'s choice, the court recognized that K.S. had been acting in a parental role for the two younger children, V.S. and L.S., for a significant portion of their young lives. L.S. was a couple days old, and V.S. was a year old when they were removed from parental custody. They were placed with K.S. on April 5, 2016, and had been well cared for by K.S. for almost two years by the time of the contested section 366.26 hearing. The court also noted that K.S. had continued contact with the two older children, An.N. and A.N., who had developed a bond with K.S., and that she had been acting as their caretaker for months.
Based on the evidence in this case, the court did not abuse its discretion in determining not to proceed with tribal customary adoption. As noted above, although the Tribe objected for the record, it left the decision to K.S. to make. The social worker believed that adoption was in the children's best interest. The children desired to be adopted by K.S., and K.S. preferred the more permanent plan of traditional adoption. In addition, the children, especially An.N. and A.N., required stability. From early in the case, An.N. and A.N. experienced anxiety about where they would live, due in part to the Indian placement preference and also in part to Mother's interference with their foster care placement. In fact, Mother's interference with their foster care placement resulted in the foster parent requesting An.N. and A.N. be removed from the home. Furthermore, at times, An.N. and A.N. appeared to be afraid of Mother and by the end of the dependency proceedings indicated they no longer wanted to visit with her. Once An.N. and A.N. were placed with K.S., they had adjusted well and wanted to be adopted by her. The years of uncertainty and fear of moving had finally ceased, and An.N. and A.N. were happily reunited with their half siblings in a secure placement. The Tribe recognized the security of the placement and the ability of K.S. to meet the children's needs.
Mother's arguments to the contrary are unavailing. There is no indication in the record to support her contention that K.S. did not understand tribal customary adoption, or that she was misinformed about tribal customary adoption. The Tribe's representative had visited K.S. several times and had spoken with K.S. about a tribal customary adoption. In addition, K.S. testified as to her understanding of tribal customary adoption, and that she desired not to proceed with tribal customary adoption but a traditional adoption. There is also no evidence in the record to support Mother's claim that K.S. relied on "the social worker's limited and bias[ed] information when objecting to a [t]ribal [c]ustomary [a]doption preferred and recommended by the [T]ribe to ensure the continuance of the children's rights and connections with their Indian tribe." K.S. specifically testified that she would ensure the children would maintain contact with the Tribe. Moreover, the Tribe's expert testified that she believed K.S. would continue to have the children involved with the Tribe. Furthermore, the Tribe's representative stated that the Tribal Community was "very confident in the placement's ability to meet the children's needs." The Tribe's representative also asserted that "The placement is an ICWA compliant placement and the Community is in agreement with the placement and does believe that the placement has all capability of meeting the children's needs and looking out for their best interest."
Based on the foregoing, the record supports the juvenile court's decision to proceed with termination of parental rights and adoption as the permanent plan.
IV
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON
J. We concur: McKINSTER
Acting P. J. FIELDS
J.