208 Cal. App. 4th 751
Cal. Ct. App.2012Background
- In 2010 California enacted AB 1325 establishing tribal customary adoption as an alternative permanent plan for Indian children without terminating parental rights.
- The Yurok Tribe intervened in the dependency proceeding and recommended tribal customary adoption as the permanent plan.
- CDSS submitted an assessment supporting tribal customary adoption, but the paternal grandmother later withdrew willingness to pursue it.
- A tribal customary adoption order was entered by the tribe, outlining rights and cultural participation, but the grandparents later opposed it.
- At the contested 366.26 hearing the juvenile court selected traditional state-law adoption with termination of parental rights, finding no detriment to the minor.
- The court acknowledged the new framework but treated tribal customary adoption as a potential option only if not detrimental and did not find detriment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether tribal customary adoption must be chosen when the tribe elects it | Policymaking requires tribal preference | Court discretion remains; detriment must be shown | No; court must follow statutory preference but retain discretion |
| Whether the court erred by not adopting tribal customary adoption without detriment finding | AB 1325 favors tribal customary adoption when not detrimental | Detriment must be shown or outweighed by other factors | Abuse of discretion; failure to consider tribal preference properly constitutes error |
| Whether the tribe’s election can compel permanent plan selection | Election should guide final plan | Election alone does not compel; detriment standard applies | Election informs, but does not mandate, adoption without detriment finding |
| Role and effect of full faith and credit for tribal orders in permanence | Full faith and credit supports tribal order enforcing permanency | Full faith and credit only applies when tribal order chosen as permanent plan | Full faith and credit does not force plan choice but supports chosen plan |
| Whether the court abused its discretion by not ensuring ongoing tribal connection | Preserving tribal ties is paramount for Indian children | Discretion to balance ties with permanency is appropriate | Yes; court abused discretion by not recognizing enhanced preference for tribal ties under AB 1325 |
Key Cases Cited
- In re Jasmine D., 78 Cal.App.4th 1339 (Cal. Ct. App. 2000) (tribe may prefer guardianship but court may adopt adoption for permanence)
- In re A.A., 167 Cal.App.4th 1292 (Cal. Ct. App. 2008) (tribal preferences must be weighed; adoption may be chosen over guardianship)
- In re T.S., 175 Cal.App.4th 1031 (Cal. Ct. App. 2009) (court retains discretion to reject tribe’s guardianship in favor of adoption)
- In re C.B., 190 Cal.App.4th 102 (Cal. Ct. App. 2010) (continuing relationship and ongoing ties can affect permanence determinations)
- In re Amber M., 103 Cal.App.4th 681 (Cal. Ct. App. 2002) (continuing beneficial relationship exception in permanency planning)