215 Cal. App. 4th 339
Cal. Ct. App.2013Background
- Minor removed from parental custody in 2008 and adjudicated dependent; mother claimed Indian heritage and minor enrolled in Pit River Tribe.
- By May 2010, reunification failed; court set a selection and implementation hearing with Department recommending termination and adoption.
- Mother petitioned for modification under §388; December 2010 hearing denied due to 18-month statutory limit, court found no authority to extend reunification.
- January 2011 selection hearing: court found guardianship in minor’s best interests to preserve tribal membership and encouraged Tribe to consider Tribal Customary Adoption (TCA).
- Mother appealed; this court reversed the denial of modification and remanded for new modification hearing.
- During 2011–2012, Tribe did not take action on TCA; caretakers pursued adoption with emphasis on cultural ties and guardian involvement.
- At the March 2012 modification hearing, experts favored reunification only with increased services; court ultimately proceeded to selection and implementation and adopted termination with adoption as permanent plan, finding substantial ongoing tribal connection would be maintained through caretakers and that TCA was not pursued through Tribe’s inaction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is TCA available at the second selection hearing despite no Tribe-ordered continuance? | M.W. argues TCA should have been available. | Tribe contends timing/continuance governed by 366.24 and could still pursue TCA. | Yes; TCA remained available, but Tribe had not pursue it, so court could proceed with traditional adoption. |
| Does traditional adoption preserve tribal connection when no TCA order exists? | Mother/Tribe contend TCA is needed to preserve tribal connection. | Adoption can still preserve cultural ties through caretakers; TCA not pursued. | Court healthy for adoption; evidence showed caretaker involvement maintained connection. |
| Did Department fail to consult with Tribe on TCA, and is there forfeiture? | Tribe alleges failure to discuss TCA in assessments. | Department/CDSS discussed TCA; Tribe did not object; challenge forfeited. | Any error harmless; forfeiture but substantial discussion existed. |
| Was Tribe’s preference for TCA binding when it never designated TCA and did not act on it? | Tribe preferred TCA over traditional adoption. | Without designation and action, court may choose best permanent plan (adoption). | Court could select traditional adoption given lack of Tribe action on TCA. |
Key Cases Cited
- In re Ronell A., 44 Cal.App.4th 1352 (Cal. App. 1996) (adoption preferred when it's in minor’s best interests; TCA option not mandatory)
- In re H.R., 208 Cal.App.4th 751 (Cal. App. 2012) (distinguishable; no TCA order presented to court)
- In re Christopher B., 43 Cal.App.4th 551 (Cal. App. 1996) (forfeiture of TCA challenge when no objection to deficiencies)
- In re Dakota S., 85 Cal.App.4th 494 (Cal. App. 2000) (harms of non-consideration of TCA noted; assessment duties)