28 Cal. App. 5th 131
Cal. Ct. App. 5th2018Background
- Children A.S. and E.S., identified as Indian children under ICWA, were removed after recurring domestic violence and parents’ noncompliance with a restraining order; reunification services were later terminated.
- The Mesa Grande Band of Mission Indians (the Tribe) intervened and recommended tribal customary adoption; the Tribe submitted a Tribal Customary Adoption Order before the contested section 366.26 hearing.
- The juvenile court selected tribal customary adoption as the permanency plan, received the Tribe’s order, and afforded it full faith and credit.
- Parents (Mother and Father) argued at the section 366.26 hearing that they were denied due process because the Tribe allegedly did not consider their evidence before issuing its adoption order and the court limited evidence at the hearing.
- The court admitted agency reports and allowed limited parental testimony about visits and bonds; tribal representative testified she had communications with both parents.
- The court found the children adoptable, that active efforts were made, and that tribal customary adoption was appropriate; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether parents were denied due process because the Tribe did not consider their evidence before issuing the tribal customary adoption order | Parents: Tribe finalized its order without meaningful opportunity to consider parents’ input, so parents were deprived of due process | Respondent: Parents had communications with tribal representatives pre-order; court reasonably found parents had opportunity to be heard | Court: No due process violation — record supports that parents had pre-order communications with Tribe; any error harmless beyond a reasonable doubt |
| Whether the juvenile court erred by not continuing the hearing to allow parents to present evidence to the Tribe before the court granted full faith and credit | Parents: Court should have continued the hearing so Tribe could consider parent evidence before finalizing order | Respondent: Continuance permissive; statutory scheme contemplates two-part process but can be condensed if parents had meaningful opportunity to be heard | Court: No abuse of discretion — parents had opportunity to communicate with Tribe; All-County Letter guidance not binding when it would diminish due process |
| Whether exclusion/limitation of evidence at the section 366.26 hearing violated parents’ rights (including cross-examination) | Parents: Court improperly excluded relevant testimony about visitation, progress, and cross-examination, impairing ability to show detriment | Respondent: Parents had been allowed to testify; reports containing visitation/bond information were admitted; parents forfeited objections by agreeing to scope | Court: No violation — parents presented testimony and the court’s evidentiary rulings were within discretion; any erroneous exclusion was harmless |
| Whether tribal customary adoption was improper because parents demonstrated "countervailing detriment" | Parents: Adoption would sever beneficial ties and limit visitation (tribal order delegates visitation to caregivers) — jeopardizes parent-child relationship | Respondent: Evidence showed children comfortable separating, need permanency; parents failed to prove substantial emotional attachment or that harm from severing outweighed benefits of permanency | Court: No abuse of discretion — parents failed to show the heavy burden of countervailing detriment; tribal customary adoption was appropriate |
Key Cases Cited
- In re Heather B., 9 Cal.App.4th 535 (discusses reunification time-limits and permanency focus)
- In re Celine R., 31 Cal.4th 45 (section 366.26 framework and permanency focus)
- In re Sadie S., 241 Cal.App.4th 1289 (tribal customary adoption and scope of evidence/detriment analysis)
- In re H.R., 208 Cal.App.4th 751 (tribal customary adoption preference and countervailing detriment concept)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (due process notice/hearing standard)
- Yamaha Corp. of America v. State Bd. of Equalization, 19 Cal.4th 1 (weight to give agency interpretations)
- In re Dolly D., 41 Cal.App.4th 440 (due process right to cross-examine report author)
- Ingrid E. v. Superior Court, 75 Cal.App.4th 751 (due process is flexible; denial of any hearing violates rights)
- In re Autumn H., 27 Cal.App.4th 567 (appellate review defers to juvenile court credibility findings)
- In re Michael G., 203 Cal.App.4th 580 (limitations on reweighing evidence and credibility on appeal)