Filed 10/3/18; pub. order 10/12/18 (see end of opn.)
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
In re A.S. et al., Persons Coming Under D073561 the Juvenile Court Law. (Super. Ct. No. EJ3633B/C) SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY,
Plaintiff and Respondent,
v.
C.S. et al.,
Defendants and Appellants.
APPEAL from orders of the Superior Court of San Diego County, Ana L. Espana,
Judge. Affirmed.
Paul A. Swiller, under appointment by the Court of Appeal, for Defendant and
Appellant C.S.
Elizabeth C. Alexander, under appointment by the Court of Appeal, for Defendant
and Appellant T.F. Thomas E. Montgomery, County Counsel, John E. Philips, Chief Deputy County
Counsel, and Lisa M. Maldonado, Deputy County Counsel, for Plaintiff and Respondent.
This appeal arises from the juvenile court's selection of a tribal customary
adoption as the permanent plan for minors A.S. and E.S. and the corresponding award of
full faith and credit to the tribal customary adoption order. C.S. (Father) and T.F.
(Mother) appeal the court's orders, contending that their due process rights were violated
by the failure of the tribe to consider evidence from the parents in developing a tribal
customary adoption order and by the court's exclusion of evidence at the Welfare and
Institutions Code section 366.26 hearing. For the reasons explained below, we affirm the
juvenile court's orders in their entirety.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2013, the San Diego County Health and Human Services (the Agency)
removed minor Aa.S. from Mother and Father's home after Aa.S. witnessed a domestic
violence incident between her parents.1 At some point, Aa.S. was returned to Mother's
custody. A.S. was born in October 2014 to Mother and Father. Following another
domestic violence incident in January 2015, Aa.S. and A.S. were removed from Mother's
home. The Agency filed a Welfare and Institutions Code section 3002 petition regarding
1 Aa.S. is the older sibling of A.S. and E.S. Jurisdiction over Aa.S. initially prompted the Agency's involvement with the family. However, Aa.S. is not the focus of this appeal.
2 All section references are to the Welfare and Institutions Code unless otherwise indicated.
2 A.S. on February 4, 2015, following her exposure to violent confrontations between the
parents involving the use of physical force. At the related detention hearing, the court
found C.S. to be A.S.'s presumed father, issued a permanent restraining order against
him, and returned Aa.S. and A.S. to Mother's custody.3
A. Removal from Father's Custody
At the April 17, 2015 contested adjudication and disposition hearing, the court
sustained the section 300 petition and made a true finding that A.S. was a person as
described under section 300, subdivision (b). The court removed A.S. from Father's
custody under section 361, subdivision (c) and placed A.S. with Mother.4
On December 4, 2015, Mother filed a section 388 petition to terminate the
restraining order against Father. After hearing arguments from Mother, Father, and the
Agency, the court denied Mother's motion. In January 2016, the court modified the
restraining order to allow peaceful contact between the parents outside the children's
presence and at medical and school appointments and public events, but continued to
prohibit Father from being at Mother's home while the children were present. The court
continued A.S.'s placement with Mother, and ordered family maintenance services for
3 Father appealed this decision. We dismissed the appeal after his attorney submitted a Sade C. brief (In re Sade C. (1996) 13 Cal.4th 952).
4 Father appealed this decision. The remittitur issued August 26, 2015 after counsel for Father submitted a Sade C. brief. 3 Mother and enhancement services for Father. The court ordered Father to follow his case
plan, attend A.A. meetings, and participate in a domestic violence class.5
B. Removal from Mother's Custody
E.S. was born to Mother and Father in March 2016. Mother did not inform the
hospital of the restraining order, and Father was present at the birth; he also visited
throughout the hospital stay. When confronted by the social worker later about Mother
and Father being together in the presence of the children, the parents acknowledged the
existence of the restraining order, but maintained that it did not prohibit their having
contact with each other while the children were present.
Minors' counsel filed a section 388 petition on May 10, 2016, alleging that the
parents were out of compliance with the restraining order. At a special hearing that day,
the court ordered that A.S. be detained outside Mother's home. The Agency filed a
section 300 petition on May 13, regarding E.S., and the court issued a protective custody
warrant the same day. On May 16, at the detention hearing for E.S., the court found C.S.
to be the presumed father and ordered E.S. detained outside her parents' homes. The
Agency also filed a section 387 petition regarding A.S. on May 20, alleging that Father
had visited the home intoxicated, while the children were present, and Mother had called
the police because of Father's belligerence. At the detention hearing for A.S. on May 23,
2016, the court found that A.S.'s removal was necessary.
5 Father appealed these orders because the court continued jurisdiction. After Father's attorney filed a Sade C. brief, we dismissed the appeal. 4 C. Indian Child Welfare Act
The contested adjudication and disposition hearing for both children was initially
set for July 15, 2016. However, the hearing was repeatedly continued to address claims
of Indian heritage, pending the outcome of Indian Child Welfare Act (ICWA)
notifications. In December 2016, the Mesa Grande Band of Mission Indians (the Tribe)
expressed interest in intervening in the case, and the Tribe formally sent a letter in
January 2017 that stated that the Tribe "recognize[d] and consider[ed] each child . . . be
afforded the protections under 'Indian Child' under ICWA."6 Mother and Father
continued to live together throughout this time, at least sporadically.
At the February 3, 2017 contested adjudication and disposition hearing, the court
found that the minors were Indian children as defined in the ICWA, 25 U.S.C. section
1903(4). Because the children were under the age of three at the time they were removed
from their parents' custody, the parents were given six months to make substantive
progress in their plans.7
D. Termination of Reunification Services
On September 5, 2017, the court found by a preponderance of the evidence that
returning the children to their parents would create a substantial risk of detriment to the
6 The letter is dated January 11, 2016. However, that date appears to be erroneous. The Agency's January 30, 2017 addendum report notes the notice was sent to the Mesa Grande Band of Mission Indians on November 14, 2016, after the date of the letter. Additionally, the Agency did not receive the letter via facsimile until January 23, 2017, and the letter identifies E.S.'s date of birth in March 2016, also after the date of the letter.
7 The parents appealed the court's orders, and we dismissed their appeals after the parents' attorneys filed Sade C. briefs. 5 children's physical and emotional well-being. The court also found that there was not a
substantial probability that the children would be returned to their parents' physical
custody within an extended period of time. The court ordered reunification services
terminated. The court also ordered permanent placement under section 361.2,
subdivision (e) and found by clear and convincing evidence that the Agency had
complied with the case plan to make active efforts to return the children to a safe home,
as required by section 361.7. The court reaffirmed the terms of the restraining order and
continued visitation between the minors and the parents. The court set a hearing date to
select a permanent placement plan for the minors, as required by section 366.26.
E. Section 366.26 Report
In its January 3, 2018 section 366.26 report, the Agency recommended tribal
customary adoption as the permanent plan for the children, with placement with the
current caregivers, with whom both children had been residing, together with their older
sister, since January 21, 2017. The Tribe agreed. In this report, the Agency noted that
Mother had visited the children consistently and that Father had, as well, until recently.
The Agency commented that the children "share a good relationship with their parents"
and "appear comfortable at visits"; it also noted that the children "have no issue
separating when visits are over," and stated that the children have a special need for
permanency.
F. Mother's Section 388 Petition
On February 2, 2018, Mother filed a section 388 petition pertaining to both
children. Mother attached to the petition information about her therapy, her lease, and
6 visitation narratives. Mother sought six more months of services. At the February 7,
2018 hearing on this request, the court found that Mother had not met her prima facie
burden.
G. Section 366.26 Hearing
In the February 16, 2018 addendum report, the social worker reported that A.S.
did not want to go with the social worker to visit her father, and that when she returned
from those visits, she exhibited behavioral issues. The report also noted that Father was
appropriate in his visits with the children, but sometimes arrived unprepared, gave the
children sugary snacks, or was distracted from the children by communications with
professionals involved in the case. The report stated that the Agency's social worker had
been informed by the tribal social worker that the tribal social worker had spoken with
Mother about the Tribe's adoption recommendation. The Agency continued to
recommend tribal customary adoption, noting that the parents had not shown the ability
to maintain a safe home environment, free from domestic violence.
Prior to the contested section 366.26 hearing, minors' counsel filed a motion in
limine seeking to narrow the issues to be determined at the hearing. The motion argued
that in the case of an Indian child, the issues that the juvenile court is to consider at the
366.26 hearing are limited to adoptability and whether tribal customary adoption would
be detrimental to the minors.
Though Mother's attorney sought some leeway in the permissible scope of
Mother's testimony so that Mother would have the opportunity to express her feelings and
discuss how visitation was going, both Mother's attorney and Father's attorney concurred
7 with the analysis in the motion in limine, confirming that the law requires a showing of
detriment to the children from the selection of tribal customary adoption as the permanent
plan in order to render tribal customary adoption inappropriate. Father's attorney told the
court that he believed the motion in limine accurately summarized the applicable law.
Mother testified at the February 16, 2018 hearing that she had not been given an
opportunity to provide information to the Tribe regarding her progress with her services.
She explained that she wanted the Tribe to know that she had completed domestic
violence classes and therapy, and that she had healed. She also testified that she opposed
the tribal customary adoption because she wanted to raise her children herself. She told
the court that she was living on her own and maintained that she had learned "red flags"
and other warning signs from participating in therapy and completing domestic violence
classes. She testified that she had left four messages for the Tribe after she received the
tribal customary adoption proposal, but had not been contacted by anyone from the Tribe.
On cross-examination, Mother denied that she had spoken about A.S. and E.S. with the
tribal social worker in October 2017. The court concluded that testimony about
visitation, Mother's progress in services, and her bond with the children was not relevant
to the issues to be determined at the hearing.
Father's attorney argued that a tribal customary adoption would be detrimental to
the children because it would impede their visitation with Father. Father's attorney
agreed that a tribal customary adoption would mean that future visitation with the parents
would be decided by the Tribe.
8 When Father testified, the court explained that it would allow Father the
opportunity to say what he wished, but would not permit a lot of detail about visitation.
Father testified regarding his visitation with the minors, generally, and stated that he had
had no contact with the Tribe, despite having tried to get in touch with the tribal social
worker.8 Contradicting the parents' testimony, Karen Kolb, the Tribe's representative,
reported that the phone calls Father referenced were to the tribal hall or tribal offices, but
that her office was the one that handled ICWA cases. She testified that she "had several
conversations [with Father] since 2017 when [the Tribe] first took the case. There [have]
been numerous phone calls. Some of them have lasted up to 45 minutes." She also said,
"[W]e have had many visitations. We've had many consultations. I just looked at my
notes and filled up [sic] a whole page of consultations, visits, phone calls, home visits,
consultations with the Indian specialist, and foster home parent conversations at court."
The court received in evidence the Agency's reports, without objection; these reports
included information about visitation, bonding, and attachment.9 The court commented
that much of the information was not relevant.
8 Counsel for Father also commented in his closing argument that the power to control visitation under the terms of the tribal customary adoption order would be delegated to the caregivers, and he noted that in the sibling's case, that had resulted in no visitation or phone calls between the child and Father. "[S]ection 366.24, subdivision (c)(10) requires the [tribal customary adoption] order to address the issue of visitation, but it does not guarantee birth parents a right of visitation." (In re Sadie S. (2015) 241 Cal.App.4th 1289, 1302 (Sadie S.).)
9 The reports included general information about the bond between the minors and their parents, but there was no bonding study. 9 The court stated that it had reviewed the reports that it had received and had
considered the testimony and arguments of the parties before arriving at a decision. The
court noted that the parents had received more than 44 months of services and that neither
parent had adequately addressed the protective issues raised by the case. The court found
that A.S. and E.S. were specifically and generally adoptable Indian children and that the
social worker had consulted with the Tribe, which had elected a permanent plan of tribal
customary adoption for the children. The court received the Tribe's Tribal Customary
Adoption Order and afforded it full faith and credit.
Mother and Father separately appealed these orders from the section 366.26
hearing. We affirm.
DISCUSSION
A. Tribal Customary Adoption
While statutory goals demonstrate a preference for family preservation for
dependent children as a first priority, legislative policy maintains that, "reunification
services should be 'time-limited' in favor of permanency planning at the earliest
appropriate time." (In re Heather B. (1992) 9 Cal.App.4th 535, 541.) When
reunification efforts fail, the court terminates reunification efforts and sets the matter for
a hearing under section 366.26 for the selection and implementation of a permanent plan.
(In re Celine R. (2003) 31 Cal.4th 45, 52 (Celine R.).) At that point, the focus becomes
the best interests of the child, with the goal of protecting a child's right to a stable,
permanent home in which the caretaker can make a full emotional commitment to the
10 child. (Sadie S., supra, 241 Cal.App.4th at p. 1303; In re H.R. (2012) 208 Cal.App.4th
751, 759 (H.R.).)
The general statutory preference is termination of parental rights and placement
for adoption (§ 366.26, subd. (b)(1)), but "[i]n 2010, legislation was enacted establishing
'tribal customary adoption' as an alternative permanent plan for a dependent Indian child
who cannot be reunited with his or her parents. Tribal customary adoption is intended to
provide an Indian child with the same stability and permanency as traditional adoption
under state law without the termination of parental rights, which is contrary to the
cultural beliefs of many Native American tribes." (H.R., supra, 208 Cal.App.4th at
p. 755; § 366.24, subd. (a) [adoption through custom, traditions, or law of an Indian
child's tribe does not require termination of parental rights].)
The dependency court has discretion to select the most appropriate permanent
plan. (H.R., supra, 208 Cal.App.4th at pp. 764-765.) If recommended by a child's tribe,
tribal customary adoption is the preferred permanent plan. (Id. at pp. 761, 763-764 ["the
default in the case of an Indian child is tribal customary adoption"]; § 366.26,
subds. (b), (c)(1), & (e)(2).) Any party may contest selection of tribal customary
adoption as the permanent plan, but the parents do not have to agree to tribal customary
adoption in order for its selection to be proper. (H.R., at p. 766; § 366.24, subd. (c)(11);
Sadie S., supra, 241 Cal.App.4th at pp. 1302-1303.) A tribal customary adoption plan is
the most appropriate permanent plan absent "evidence of countervailing detriment to the
minor that the court, in its discretion, concludes would result from this form of adoption."
(H.R., at p. 764.)
11 In 2010, the Department of Social Services published All-County Letter (All-
County Letter) No. 10-47 to provide guidance on tribal customary adoptions.10
According to the All-County Letter, the juvenile court is not required to afford full faith
and credit to the tribal customary adoption order if the order violates generally accepted
California public policy, there is fraud, the entity that issued the order lacked authority to
do so, the order does not provide for due process, or it offends a strongly held public
policy. (California Department of Social Services, All-County Letter No. 10-47, § 10.4,
available at
[as of October 3, 2018] archived at (All-County
Letter).) However, declining to afford full faith and credit to the order does not prevent a
tribal customary adoption from occurring. If the court declines to afford full faith and
credit to the order, the parties must address and attempt to resolve the issues preventing
affording the order full faith and credit. (Id. at § 10.5.) If the issues cannot be resolved,
then the court may determine a different permanent plan for the Indian child. (Ibid.)
The Welfare and Institutions Code provides that when a tribal customary adoption
has been selected as the permanent plan, "the court, upon receiving the tribal customary
adoption order will afford the tribal customary adoption order full faith and credit to the
same extent that the court would afford full faith and credit to the public acts, records,
10 The All-County Letter was drafted pursuant to Section 26 of AB 1325, which states that " 'the Department of Social Services may implement and administer the applicable provisions of this act through all-county letters or similar instruction from the director until such time as the regulations are adopted.' " (All-County Letter, p. 2, fn. 1.) We discuss the weight of the All-County Letter post. 12 judicial proceedings, and judgments of any other entity." (§§ 366.24, subd. (c)(6);
366.26, subd. (e)(2).)
B. Standards of Review
We review interpretations of law de novo. (In re Hogan (1986) 187 Cal.App.3d
819, 822.) We review the dependency court's selection of a tribal customary adoption
under an abuse of discretion standard. (H.R., supra, 208 Cal.App.4th at p. 765.)
"Discretion is delimited by the applicable legal standards, a departure from which
constitutes an 'abuse' of discretion." (People v. Harris (1998) 60 Cal.App.4th 727, 736
(Harris).) Thus, a court abuses its discretion if it applies an incorrect legal standard.
(In re Shannon M. (2013) 221 Cal.App.4th 282, 289 (Shannon M.).)
C. Due Process Rights
The parents contend that the court's selection of tribal customary adoption as the
children's permanent plan violated their due process rights because they were denied the
opportunity to present evidence to the Tribe regarding the children's best interests. We
disagree.
1. Legal principles
"Different levels of due process protection apply at different stages of dependency
proceedings." (In re Thomas R. (2006) 145 Cal.App.4th 726, 733.) Because the focus
shifts from the parents' interest in reunification to the child's need for permanency and
stability after reunification services are terminated and a section 366.26 hearing is set,
parents do not have unfettered due process rights. (Ibid.) Due process requires
"a 'hearing appropriate to the nature of the case.' " (In re James Q. (2000) 81 Cal.App.4th
13 255, 265 (James Q.), quoting Mullane v. Cent. Hanover Bank & Trust Co. (1950)
339 U.S. 306, 313.) Although due process is "a flexible concept which depends upon the
circumstances and a balancing of various factors," it generally requires the right to
present relevant evidence. (In re Jeanette V. (1998) 68 Cal.App.4th 811, 817.) This
means parents are entitled to be heard in a meaningful manner. (James Q., at p. 265;
In re Crystal J. (1993) 12 Cal.App.4th 407, 412 [parents whose rights will be impacted
entitled to be heard].)
Additionally, section 366.24 sets out requirements that must be met before the
juvenile court may afford a tribal customary adoption order full faith and credit. One of
these requirements is set forth in subdivision (c)(7), which states, "The child, birth
parents, or Indian custodian and the tribal customary adoptive parents and their counsel,
if applicable, may present evidence to the tribe regarding the tribal customary adoption
and the child's best interests." (See Sadie S., supra, 241 Cal.App.4th at p. 1302.) At
issue here is at what point in the process the parents are to be given the opportunity to
present evidence to the tribe.
2. Timing of parental input to tribe
Section 366.24, subdivision (c)(6) states, "If the tribe identifies tribal customary
adoption as the permanent 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." While continuing the hearing for this purpose appears to
14 be permissive,11 section 366.26 indicates that the court determines whether to afford the
tribal customary adoption order full faith and credit at the continued selection and
implementation hearing. (§ 366.26, subd. (b)(2).) Taken together, the statutes
contemplate a two-part selection and implementation hearing. At the initial hearing, the
court selects tribal customary adoption as the permanent plan; at the continued hearing,
the court addresses the specific tribal customary adoption order, and determines whether
to afford it full faith and credit.12 (§§ 366.26, subd. (b)(2); 366.24, subd. (c)(6);
see B.H. v. County of San Bernardino (2015) 62 Cal.4th 168, 189 [courts harmonize the
various parts of a statutory enactment].)
Similarly, the All-County Letter describes a two-part hearing for tribal customary
adoptions. If reunification services are terminated, once the tribe and social worker
indicate that tribal customary adoption is the preferred plan, the court considers tribal
customary adoption as the permanent plan at the section 366.26 hearing. (All-County
Letter, §§ 1.6(b) & 1.6(e).) If the court determines that tribal customary adoption is the
appropriate permanent plan, the court continues the hearing for the tribe to conduct its
part of the section 366.24 process. (All-County Letter, § 1.6(e).) Both the statutes and
the All-County Letter state that the tribe must file the tribal customary adoption order no
11 The word "may" is treated as permissive "[a]bsent indicia of a contrary legislative intent." (In re J.N. (2006) 138 Cal.App.4th 450, 457, fn. 4.)
12 Our statutory analysis is consistent with existing case law, which states, "[a]t the selection and implementation hearing the parties may present evidence to the Tribe on the TCA and the minor's best interest." (In re I.P. (2014) 226 Cal.App.4th 1516, 1526; In re A.M. (2013) 215 Cal.App.4th 339, 348.) 15 less than 20 days before the continued hearing. (§§ 366.26, subd. (b)(2); 366.24,
subd. (c)(6); All-County Letter, § 1.6(e).)
The All-County Letter indicates that the parents' opportunity to present evidence
to the tribe regarding the tribal customary adoption order and the child's best interests is
at the continued hearing. (All-County Letter, § 1.6(e)(3)(i).) The statutes do not state at
what point in the process the parents must be given the opportunity to provide
information to the tribe regarding tribal customary adoption and the child's best interests.
However, case law suggests this should occur before the tribe has completed the tribal
customary adoption order, not, as the All-County Letter provides, at the hearing granting
the order full faith and credit. (See, e.g., Sadie S., supra, 241 Cal.App.4th at p. 1302.)
The timing of parental input as set forth in the All-County Letter is problematic
because it would allow for parental input only after the tribe has developed and submitted
the tribal customary adoption order. While we recognize that a court is not required to
terminate parental rights when it adopts a tribal customary adoption as the permanent
plan (§§ 366.24, subd. (a); 366.26, subd. (c)(1)(B)(vi)), because a tribal customary
adoption order can effectively eliminate all parental contact and decision making, as is
the case here, parents' due process rights must be protected. Waiting until the hearing at
which the court is poised to grant the tribal customary adoption order full faith and credit
to allow the parents to provide input deprives them of any meaningful opportunity to be
heard by the tribe. Instead, as the statutory scheme contemplates, parents must have the
opportunity to communicate with the tribe before it adopts the tribal customary adoption
16 order so that the tribe may consider the parents' evidence in developing the order and
completing the tribal adoption.13
3. Significance of All-County Letter No. 10-47
"The degree of deference that courts accord to an All-County Letter depends on
the substance of the All-County Letter as a quasi-legislative rule or merely an
interpretation of the statute." (In re H.C. (2017) 17 Cal.App.5th 1261, 1268-1269
(H.C.).) "Considered alone and apart from the context and circumstances that produce
them, agency interpretations are not binding or necessarily even authoritative. To quote
the statement of the Law Revision Commission in a recent report, 'The standard for
judicial review of agency interpretation of law is the independent judgment of the court,
giving deference to the determination of the agency appropriate to the circumstances of
the agency action.' " (Yamaha Corp. of America v. State Bd. of Equalization (1998)
19 Cal.4th 1, 8 (Yamaha Corp.); but see Sharon S. v. Superior Court (2003) 31 Cal.4th
417, 436 [when agency has special expertise and its decision is carefully considered by
senior officials, decision entitled to greater weight].)
We view All-County Letter 10-47 as interpretive. (H.C., supra, 17 Cal.App.5th at
pp. 1268-1269.) The timeline outlined in the All-County Letter is thus not binding. The
All-County Letter was drafted in 2010 to provide direction for statewide implementation
13 While the statutory language suggests that a tribe does not identify tribal customary adoption as the permanent plan until the section 366.26 hearing, necessitating a continuance for the completion of the tribal customary adoption order (see § 366.24, subd. (c)(6)), we recognize that the process can be condensed, as it was here, as long as parents are afforded a meaningful opportunity to present evidence to the tribe regarding tribal customary adoption and the child's best interests before the tribe finalizes the order. 17 of tribal customary adoption until such time as regulations are adopted. (All-County
Letter, p. 2, fn. 1.) It was not the product of any formal agency decision making in
accordance with the Administrative Procedures Act, and no formal regulations have been
forthcoming. To the extent that the All-County Letter is consistent with the statutes, its
guidance is helpful; however, to the extent that it diminishes parents' due process rights,
we decline to grant it deference. (See Yamaha Corp., supra, 19 Cal.4th at p. 7.)
4. The parents' due process rights
The parents contend that they were denied due process because they did not have
an opportunity to present evidence to the Tribe regarding the children's best interests.
The court did not continue the section 366.26 hearing in this case.14 Instead, at the
contested hearing, the court selected tribal customary adoption as the permanent plan
after the parents each presented evidence opposing it. While the Tribe had a
representative in attendance at the hearing at which the parents' evidence was presented,
because the Tribe completed the tribal adoption order and submitted it in advance of the
hearing, the hearing did not afford the parents a meaningful opportunity to present
evidence to the Tribe regarding the terms of the proposed tribal customary adoption or
the children's best interests before the Tribe prepared its tribal customary adoption order.
14 On the date originally set for the section 366.26 hearing, the Tribe recommended a tribal customary adoption, and the court set a trial date and prehearing conference. However, the court did not consider any permanency plan for the children on that date, instead addressing the matter for the first time at the contested section 366.26 hearing the following month. That hearing was not continued. 18 However, the court also contemplated whether due process had been provided to
the parents through communications between the parents and the Tribe that occurred
prior to the hearing. There was contradictory evidence on this point. Mother and Father
each testified that they had attempted to communicate directly with the Tribe, without
success. Mother acknowledged that she might have spoken with the tribal social worker
in October 2017, but also said that the conversation with the social worker concerned
Aa.S., not A.S. or E.S. The Tribe's representative initially said that she had nothing to
add pertaining to the section 366.26 hearing. Later, after the attorneys had presented
their arguments, the Tribe's representative reported that she had had several conversations
with Father since the time the Tribe first became involved in the case in 2017. The
Agency also reported that it had been informed by the tribal social worker that she had
spoken with Mother about the Tribe's recommendation prior to the section 366.26
hearing. Mother's attorney argued that there was more information that Mother wanted
the Tribe to have before it recommended tribal customary adoption, including what
insight she had gained, what services she had recently engaged in, and how visitation was
going.
We consider evidence in the light most favorable to the juvenile court's action
(In re Autumn H. (1994) 27 Cal.App.4th 567, 576 (Autumn H.)), and we do not second-
19 guess the court's assessment of the credibility of evidence.15 (In re Michael G. (2012)
203 Cal.App.4th 580, 589 (Michael G.) [appellate courts do not reweigh evidence or
evaluate credibility of witnesses].)
The court found that the social worker had consulted with the Tribe, the Tribe had
elected a permanency plan of tribal customary adoption, and the Tribe had supplied a
tribal customary adoption order.16 However, the court made no express finding as to
whether the parents had been provided a meaningful opportunity to present information
to the Tribe regarding tribal customary adoption or the children's best interests prior to
the Tribe's preparation of the tribal customary adoption order.
While we would have preferred that the court make a specific finding on the
record regarding subdivision (c)(7) of section 366.24, the record reflects that the parents
communicated with the Tribe regarding the children's best interests before the tribal
customary adoption order was final; Mother spoke with a social worker about the Tribe's
adoption recommendation and Father had numerous conversations with the Tribe. The
Tribal representative also said the parents had been provided many opportunities to work
15 The Tribal Customary Adoption Order is dated November 12, 2017, and the tribal representatives testified that their communications with Mother occurred on October 17, 2017 and with Father several times since January 2017. This indicates that the parents provided information to the Tribe before the Tribe finalized the tribal customary adoption order.
16 This finding is consistent with the requirement outlined in All-County Letter section 2.5, which requires the agency to consult with the tribe to complete its written assessment after reunification services have been terminated. However, this does not supplant the parents' right to offer evidence to the tribe, as required by section 366.24, subdivision (c)(7). 20 with the Tribe, including visits, phone calls, and consultations with the Indian specialist.
The out-of-court communications with Tribal representatives after reunification services
were terminated met due process requirements because the parents each had an
opportunity to express their concerns regarding their children's best interests and the
proposed tribal customary adoption to the Tribe. Based on the evidence, the court could
have reasonably concluded that the parents were afforded a sufficient opportunity to be
heard by the Tribe before it finalized the tribal customary adoption order. Accordingly,
we conclude that the juvenile court did not abuse its discretion in awarding the tribal
customary adoption order full faith and credit.
5. Harmless error
Even if we were to assume that the court erred by selecting tribal customary
adoption without expressly confirming that the parents were afforded a meaningful
opportunity to present their views to the Tribe regarding the tribal customary adoption
and the children's best interests, any error was harmless beyond a reasonable doubt.
(In re Thomas R. (2006) 145 Cal.App.4th 726, 734 ["The standard of review where the
parent is deprived of a due process right is whether the error was harmless beyond a
reasonable doubt"].)
The parents do not indicate what additional information they would have shared
with the Tribe that was relevant to the minor's best interests or the tribal customary
adoption and that would have impacted the court's decision to grant the tribal customary
adoption order full faith and credit. Mother told the court that she wanted to present
evidence to the Tribe about her own progress and her opposition to adoption because she
21 wanted to raise the children herself, but has not specified what that evidence would be.
Father similarly cannot show prejudice under this standard because he offers no
additional information about what he would have shared with the Tribe to attempt to
persuade it to change its recommendation of tribal customary adoption or the terms of the
tribal customary adoption order itself.
6. Introduction of additional evidence at hearing
Father also separately contends that his due process rights were violated because
he was denied the opportunity to introduce evidence and cross-examine witnesses at the
366.26 hearing. He relies on In re Dolly D. (1995) 41 Cal.App.4th 440 (Dolly D.) and
Ingrid E. v. Superior Court (1999) 75 Cal.App.4th 751 (Ingrid E.) for this proposition,
but these cases, even taken together, are not helpful.
In Dolly D., the court concluded that it was a violation of due process rights and
California Rules of Court, rule 1449(b) and 1450 to deny a parent the opportunity to
cross-examine the social worker who prepared the jurisdictional report. (In re Dolly D.,
supra, 41 Cal.App.4th at pp. 444-445.) In Ingrid E., the court noted that due process in
dependency proceedings is a flexible concept, the application of which depends on the
circumstances and the balancing of various factors. (Ingrid E., at p. 757.) There, the
court denied the parent's request for a contested hearing to determine whether
reunification services should be terminated. (Id. at pp. 754-755, 757.) It was not the
scope of the hearing but the foreclosure of any opportunity to present a case at all that
violated the parent's due process rights. (Ibid.)
22 The facts here are distinguishable because the parents' reunification services had
been terminated at the previous, September 2017 hearing, placing them in a different
procedural posture from that of the parents in these cases. Additionally, the parents here
were not denied the opportunity to cross examine the witnesses who were responsible for
drafting the reports admitted by the court, and the parents were given leeway in offering
testimony regarding detriment and the best interests of the children.17
D. Selection of Tribal Customary Adoption
Mother and Father each contend that the court improperly limited the scope of the
section 366.26 hearing to issues of adoptability and detriment. We disagree.
1. Forfeiture
As a general rule, failure to object at the hearing forfeits a claim of error on
appeal. (In re Dakota H. (2005) 132 Cal.App.4th 212, 221 (Dakota H.); In re Lorenzo C.
(1997) 54 Cal.App.4th 1330, 1338-1339.) The parents not only failed to object to the
proposed scope of the hearing; each expressly agreed to it. Mother's attorney stated that
the law required a showing of detriment to oppose the recommended tribal customary
adoption, and expressly acknowledged that Mother's testimony about her feelings and
visitation "do[ ] not necessarily go to the crux of the [tribal customary adoption] issues."
Father's attorney similarly stated on the record that minors' counsel's motion in limine
provided the court with "an accurate reflection of the law." This acquiescence to the
17 Father's briefing does not point to examples of the court prohibiting his attorney from cross-examining witnesses, and our review of the record does not reveal that this occurred. 23 scope of the section 366.26 hearing forfeits the parents' right to claim on appeal that the
court improperly limited the scope of the hearing. (Civil Code, §§ 3515, 3516;
Dakota H., at p. 221.)
2. Scope of the Section 366.26 hearing
Even if the parents had objected to the juvenile court's limiting the scope of the
hearing to adoptability and detriment, the court did not abuse its discretion by granting
the motion in limine to limit the hearing's focus. The dependency court had previously
terminated the parents' reunification services. The purpose of the section 366.26 hearing
was to determine a permanent plan that was in the minors' best interests. (§ 366.26,
subd. (b); In re Casey D. (1999) 70 Cal.App.4th 38, 50.) When "reunification services
have been terminated because the parents have failed to reunify, the emphasis is no
longer on the parents' care, custody and control of the child, but on the child's needs for
permanency and stability." (Sadie S., supra, 241 Cal.App.4th at p. 1303.) Thus, "[a]t a
section 366.26 hearing, the court may select one of three alternative permanency plans
for the dependent child–adoption, guardianship or long-term foster care." (Michael G.,
supra, 203 Cal.App.4th at p. 588.) At this stage of the dependency proceedings, adoption
is preferred because it ensures permanency and stability for the minors. (§ 366.26,
subd. (b)(1); H.R., supra, 208 Cal.App.4th at p. 763; Celine R., supra, 31 Cal.4th at
p. 53.) For Indian children, tribal customary adoption is preferred. (H.R., at pp. 763-764,
767; see Cal. Rules of Court, rule 5.725(d)(1).)
In a selection and implementation hearing, the court presumes that terminating
parental rights is in the child's best interests, and the party opposing that result must
24 demonstrate a "compelling reason for determining that termination would be detrimental
to the child" due to one of six enumerated reasons.18 (See In re C.A. (2018) 24
Cal.App.5th 511, 521 [parents must establish exception to termination of parental rights];
see also In re. A.A. (2008) 167 Cal.App.4th 1292, 1321 [opponent to terminating parental
rights via selection of traditional adoption plan bears the burden of proof]; § 366.26,
subd. (c)(1)(B)(i)-(vi).) "[W]hile 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." (H.R., supra,
208 Cal.App.4th at pp. 763-764; see § 366.26, subd. (c)(1)(B)(vi)(I).) Thus, for a parent
to challenge a tribal customary adoption, the parent must demonstrate a "countervailing
detriment." (H.R., at p. 764.) Like the "detriment" defined by the exceptions in section
366.26, a "countervailing detriment" to a tribal customary adoption exists when there is a
compelling reason that the selection of a tribal customary adoption would be detrimental
to the child. (See, e.g., § 366.26, subd. (c)(1)(B).)
18 The six exceptions to terminating parental rights are (i) interference with the beneficial parent-child relationship; (ii) the child is at least 12 and objects to termination of parental rights; (iii) the child is in a residential facility, adoption is not likely, and continuing parental rights will not prevent a permanent placement upon the child's release from the facility; (iv) the child is living with a foster parent or Indian custodian who is unable or unwilling to adopt the child because of exceptional circumstances; (v) interference with the sibling relationship; or (vi) the child is an Indian child, and terminating parental rights would not be in the child's best interests. (§ 366.26, subd. (c)(1)(B)(i)-(vi).) 25 3. Countervailing detriment
The parents' arguments on appeal focus on what evidence the court should have
admitted and considered in selecting a permanent plan in the best interests of the
children. They contend that the court improperly limited the evidence that they wanted to
submit at the 366.26 hearing. We disagree.
A trial court has broad discretion in ruling on the admissibility of evidence, and
we will upset the ruling only if there is a clear showing of abuse of discretion. (In re
Jordan R. (2012) 205 Cal.App.4th 111, 121 (Jordan R.).) An abuse of discretion occurs
when the court fails to apply the applicable legal standard. (Harris, supra,
60 Cal.App.4th at p. 736; Shannon M., supra, 221 Cal.App.4th at p. 289.)
The disruption of beneficial ties of the minor, including ties between the parent
and child, is one type of countervailing detriment that might be caused by selection of
tribal customary adoption as the minor's permanent plan. (H.R., supra, 208 Cal.App.4th
at p. 768.). In keeping with the standards defined by section 366.26, the burden of
proving countervailing detriment is a heavy one. (See, e.g., In re Jasmine D. (2000)
78 Cal.App.4th 1339, 1350 [Legislature's preference overcome only in extraordinary
situations].)
"A biological parent who has failed to reunify with an adoptable child may not
derail an adoption merely by showing the child would derive some benefit from
continuing a relationship maintained during periods of visitation with the parent." (In re
Angel B. (2002) 97 Cal.App.4th 454, 466.) "Evidence that a parent has maintained
' "frequent and loving contact" is not sufficient to establish the existence of a beneficial
26 parental relationship.' " (In re Marcelo B. (2012) 209 Cal.App.4th 635, 643, quoting In re
Bailey J. (2010) 189 Cal.App.4th 1308, 1315-1316.) Instead, to rise to the level that
would warrant the selection of a permanent plan other than adoption, a parent must show
"a substantial emotional attachment that would cause the children to suffer great harm if
severed." (In re Breanna S. (2017) 8 Cal.App.5th 636, 648.)
Even if parents demonstrate a substantial emotional attachment, "[t]he benefit to
the child from continuing such a relationship must also be such that the relationship
' "promotes the well-being of the child to such a degree as to outweigh the well-being the
child would gain in a permanent home with new, adoptive parents." ' " (In re Aaliyah R.
(2006) 136 Cal.App.4th 437, 449-450.)
At the selection and implementation hearing, the focus is on the form of adoption
rather than the specific terms of a tribal customary adoption order.19 (§§ 366.24,
subd. (c)(6); 366.26, subd. (b)(2); see H.R., supra, 208 Cal.App.4th at p. 761.) Because
there is no requirement that a tribe submit the tribal customary adoption order prior to the
court's selection of tribal customary adoption as the permanent plan, a party may have
limited information about the potential loss of beneficial ties that will result from the
tribal customary adoption. Here, however, the court had before it the tribal customary
adoption order, which granted the tribal customary adoptive parents discretion regarding
visitation with the biological parents. The court also heard testimony from Father that the
parents had been permitted no visitation with their older daughter, Aa.S., who had been
19 The tribal customary adoption order is not necessarily available to the court at the time it selects a permanent plan. We discuss this further post. 27 adopted in a tribal customary adoption by the same tribal customary adoptive parents
under an order with an identical visitation provision. This placed the court in a position
to consider the parents' claims regarding the potential impact of the proposed tribal
customary adoption on their relationship with A.S. and E.S.
Though the trial court erred in stating that testimony about visitation and Mother's
impression of her bond with the children was not relevant to the scope of the hearing,
because such evidence clearly can go to the issue of detriment, the court nonetheless
permitted both parents to testify about the quality of their visitation with their children,
and admitted documentary evidence regarding visitation that was included in the
Agency's reports. In addition, the court gave the parents the opportunity to express their
views. Mother testified that she had been visiting with the children weekly, that she
loved the children, and that she wanted to be in their lives as much as possible. She told
the court that it was in the children's best interests to see her more frequently and that she
wanted to raise the children herself. Father testified that recently planned visitations with
the children had not occurred as scheduled due to issues with the visitation center, and
not because of Father.
The court received evidence that the parents had separately visited the children
regularly and that the children had a good relationship with their parents and appeared to
be comfortable at visits. However, the children also had no difficulty separating when
the visits were over, had recently exhibited behavioral issues after visiting with Father,
and the Agency opined that they had a special need for permanency. Thus, the court
28 heard evidence regarding the relationship between parents and the children, as well as the
benefits to the children of adoption.
While courts may consider the potential impact on the children of disrupting
beneficial ties if a tribal customary adoption is selected, the parties proffered no evidence
of such adverse consequences to the children from this form of adoption, such as a
bonding study. (See In re C.F. (2011) 193 Cal.App.4th 549, 557.) Moreover, in
traditional adoptions, where parental rights are terminated, "[e]vidence of frequent and
loving contact is not enough to establish a beneficial parental relationship." (In re
Noah G. (2016) 247 Cal.App.4th 1292, 1300.) Similarly here, where the tribal customary
adoption order gives the tribal customary adoptive parents discretion to determine
visitation, evidence of positive parental contact, alone, is not sufficient to demonstrate a
countervailing detriment. The parents provided no argument as to how the benefit from
their relationships with the minors would outweigh the benefits of adoption. (Autumn H.,
supra, 27 Cal.App.4th at p. 575.)
The court also did not abuse its discretion by determining that testimony regarding
visitation narratives, difficulties with visitation scheduling, or progress with services was
not relevant to its inquiry regarding the children's best interests, given the earlier
termination of reunification services. (See Sadie S., supra, 241 Cal.App.4th at p. 1303
[focus at section 366.26 hearing is best interests of child].) The court permitted the
parents to offer evidence of countervailing detriment. We cannot say that the court's
evidentiary decision was an abuse of discretion.
29 4. Harmless error
Even if the court erred in excluding the evidence, any error was harmless because
the admission of the evidence would not likely have resulted in a more favorable outcome
for the parents. Father argues that he would have had a reasonable probability of
prevailing if he had been able to present evidence that he had been prevented from
visiting with Aa.S. and that his visitation with A.S. and E.S. had been beneficial.20
Mother argues she was prejudiced by the court's limitations on her testimony. We
"To the extent an alleged error violates state evidentiary law, 'even where evidence
is improperly excluded, the error is not reversible unless " 'it is reasonably probable a
result more favorable to the appellant would have been reached absent the error.' " ' "
(Jordan R., supra, 205 Cal.App.4th at p. 134.) The court had before it evidence
regarding the general nature and quality of visitation between the parents and the
children, including evidence about the children's attitudes toward visiting with their
parents, their comfort level with the parents, and the parents' behavior during visitation.
Father also testified that he had not had contact with his oldest daughter since a tribal
customary adoption plan was selected for her. Father contends that for all intents and
purposes, his relationship with his children will be effectively terminated because the
20 Though the court excluded extensive evidence of Father's relationship with Aa.S. since the time of the selection of tribal customary adoption as her permanent plan, the court did admit evidence that he had no contact or phone calls since that order. 30 tribal customary adoption order gives visitation determination rights to the caregivers,
who have not permitted Father to visit with Aa.S. since her tribal customary adoption.
The court had this evidence before it at the time it made its determination that a
tribal customary adoption that included placement with the current caregivers and older
sibling was in the children's best interests. While Father contends that he could have
offered additional evidence to demonstrate that a tribal customary adoption would be
detrimental to the children, he provides no indication of what that evidence is or how he
would be able to demonstrate a probability of a result more favorable to him if he had
been permitted to offer additional evidence. While Mother was prevented from
discussing the visitation narratives, she presented to the court general information about
her visits and how much she loved her children. She also testified that she believed it
was in the children's best interests to see her more frequently. Like Father, Mother does
not identify additional evidence that she was prevented from presenting that would
demonstrate a probability of a result more favorable to her.
The parents' due process rights were not violated, either in their ability to present
evidence to the Tribe or in their presentation of evidence to the dependency court.
Further, the court did not abuse its discretion by limiting the focus of the section 366.26
hearing to evidence addressing the adoptability of the children and whether the selection
of a tribal customary adoption would be detrimental to them.
31 DISPOSITION
The orders are affirmed.
AARON, J.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
32 Filed 10/12/18 CERTIFIED FOR PUBLICATION
In re A.S. et al., Persons Coming Under D073561 the Juvenile Court Law. (Super. Ct. No. EJ3633B/C) SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, ORDER CERTIFYING OPINION FOR Plaintiff and Respondent, PUBLICATION
THE COURT:
The opinion in this case filed October 3, 2018, was not certified for publication. It
appearing the opinion meets the standards for publication specified in California Rules of
Court, rule 8.1105(c), the request pursuant to rule 8.1120(a) for publication is
GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
33 ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
Copies to: All parties