38 Cal.App.5th 655
Cal. Ct. App.2019Background
- Minor detained in Jan 2016 after petition alleging risk from parental domestic violence; mother reported possible Picayune Rancheria of the Chukchansi Indians affiliation through maternal grandfather.
- Juvenile court ordered ICWA notice; County sent certified-mail notice Jan 25, 2016 to tribe/BIA for a Feb 9 hearing but the tribe’s notice remained unclaimed; the hearing was continued and County “resent” notice on Feb 23 (which the tribe received March 7).
- Court adjudicated dependency and ordered removal and reunification on Feb 23, 2016; an ICWA compliance hearing was held Apr 26, 2016 and the court found ICWA did not apply (tribe was not apparently given notice of that hearing).
- Minor lived in foster-adoptive placement from Jan 2016; parents had regular but inconsistent visits, missed and were late to many visits; minor showed affection for both parents and foster mother and did not ask for parents between visits.
- At the § 366.26 hearing (Nov 2017) the juvenile court found the minor adoptable, rejected the beneficial-parental-relationship exception, and terminated parental rights.
- On appeal parents argued the court erred in rejecting the beneficial-parental-relationship exception and that the County/juvenile court failed to comply with ICWA notice requirements; the Court of Appeal affirmed as to the exception but conditionally reversed for ICWA notice compliance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether beneficial-parental-relationship exception (§ 366.26(c)(1)(B)(i)) applies | Parents: visits and affectionate bond with minor created significant positive attachment warranting preservation of parental rights | County: visits were inconsistent, parents missed/late often, minor thriving in adoptive home — adoption favored | Court: Exception not met—visitation inconsistent; minor’s needs better served by permanency through adoption |
| Whether County/juvenile court complied with ICWA notice provisions | Parents: County failed to give statutorily adequate, timely notice to tribe/BIA and court erred in finding ICWA inapplicable | County: argued appeal remedies improper/forfeited and earlier notice actions sufficient; some urged limiting notice duty | Court: County required to give notice; failed to send timely, continuing notice; court erred in finding ICWA inapplicable without proper notice and without waiting 60 days |
| Jurisdiction/standing/timeliness to raise ICWA notice error on appeal | Parents: may raise ICWA notice/inquiry violations on appeal from termination order | County: urged petition-for-invalidation is exclusive remedy, and parents lack standing or forfeited issue | Court: Parents have standing; appeal is proper; petition for invalidation not exclusive and issue is timely because inquiry/notice duty is continuing |
| Whether ICWA notice error was harmless | County: any error harmless because tribe received late notice and could have intervened later | Parents: late/noncompliant notice prevented tribe’s participation, so error prejudicial | Court: Error not harmless—tribe later informed court it considered minor an Indian child and would have sought intervention; reversal required for further ICWA proceedings |
Key Cases Cited
- In re Ronell A., 44 Cal.App.4th 1352 (court explains adoption is preferred permanent plan) (discussing § 366.26 framework)
- In re Beatrice M., 29 Cal.App.4th 1411 (defines significant positive emotional attachment standard)
- In re S.B., 164 Cal.App.4th 289 (explains balancing test for parental relationship exception)
- In re Jasmine D., 78 Cal.App.4th 1339 (adoption favored; extraordinary case required to preserve parental rights)
- In re Autumn H., 27 Cal.App.4th 567 (describes when bond may outweigh adoption preference)
- In re Celine R., 31 Cal.4th 45 (adoption preference and standard of review on § 366.26)
- In re K.P., 203 Cal.App.4th 614 (discretion in weighing evidence on exceptions)
- In re Isaiah W., 1 Cal.5th 1 (ICWA inquiry/notice duties are continuing; may be raised at termination order)
- In re Kahlen W., 233 Cal.App.3d 1414 (ICWA notice is essential; failure is prejudicial error)
- In re Desiree F., 83 Cal.App.4th 460 (notice enables tribe to determine membership; notice required when reason to believe child may be Indian)