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.
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.
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
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
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.
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."
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 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.
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 visitation narratives. Mother sought six more months of services.
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 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
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.
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.
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
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
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,
The dependency court has discretion to select the most appropriate permanent plan. ( H.R., supra, 208 Cal.App.4th at pp. 764-765,
In 2010, the Department of Social Services published All-County Letter (All-County Letter) No. 10-47 to provide guidance on tribal customary adoptions.
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, 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)
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)
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
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
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 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.,
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)
We view All-County Letter 10-47 as interpretive. ( H.C.,
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.
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
We consider evidence in the light most favorable to the juvenile court's action ( In re Autumn H. (1994)
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.
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 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.
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)
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 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)
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,
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)
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)
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 demonstrate a "compelling reason for determining that termination would be detrimental to the child" due to one of six enumerated reasons.
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)
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 ,
"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)
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)
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 heard evidence regarding the relationship between parents and the children, as well as the benefits to the children of adoption.
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 ,
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.
"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 ,
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.
DISPOSITION
The orders are affirmed.
WE CONCUR:
McCONNELL, P. J.
BENKE, J.
Notes
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.
All section references are to the Welfare and Institutions Code unless otherwise indicated.
Father appealed this decision. We dismissed the appeal after his attorney submitted a Sade C. brief (In re Sade C. (1996)
Father appealed this decision. The remittitur issued August 26, 2015 after counsel for Father submitted a Sade C. brief.
Father appealed these orders because the court continued jurisdiction. After Father's attorney filed a Sade C. brief, we dismissed the appeal.
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.
The parents appealed the court's orders, and we dismissed their appeals after the parents' attorneys filed Sade C. briefs.
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)
The reports included general information about the bond between the minors and their parents, but there was no bonding study.
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.
The word "may" is treated as permissive "[a]bsent indicia of a contrary legislative intent." (In re J.N. (2006)
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)
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.
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.
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.
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).
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.
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).)
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 .
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.