Filed 6/7/13
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Butte)
----
In re G.C., JR., a Person Coming Under the Juvenile
Court Law.
BUTTE COUNTY DEPARTMENT OF C070086
EMPLOYMENT AND SOCIAL SERVICES,
(Super. Ct. No. J31399)
Plaintiff and Respondent,
v.
G.C.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Butte County, Tamara l.
Mosbarger, Judge. Affirmed.
Catherine C. Czar, under appointment by the Court of Appeal, for Defendant and
Appellant.
Bruce Alpert, County Counsel; and Kimberly Merrifield for Plaintiff and
Respondent.
In this case, we address the issue of whether a party, by not objecting in the trial
court, forfeits an objection to the failure to follow procedures related to an alternative
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permanent plan for Indian children established by the Legislature -- tribal customary
adoption -- which became operative on July 1, 2010. (Stats. 2009, ch. 287, § 12.)
Father, G.C., appeals a December 2011 order terminating his parental rights to
the minor. He contends the juvenile court did not comply with Welfare and Institutions
Code section 366.241 and ensure the minor‟s Indian tribe considered the appropriateness
of a tribal customary adoption. The Children‟s Services Division of the Butte County
Department of Employment and Social Services (the Department) initially conceded the
claim, stating that because the social workers and the Indian child welfare expert did not
address the issue of tribal customary adoption, the matter must be reversed and remanded
to allow for proper consideration. We requested supplemental briefing. The Department
now contends the issue is forfeited and any error was harmless. We agree.
We hold that to preserve claims related to the failure to follow the tribal customary
adoption procedures, a parent must object on those grounds in the juvenile court. Here,
father failed to object to those procedural errors. Further, any such errors were harmless
here. Accordingly, we affirm the juvenile court‟s order.
PROCEDURAL BACKGROUND
These proceedings commenced in August 2004. In September 2004, the court
found the minor was a dependent child as described by section 300, subdivision (b)
because of parents‟ ongoing drug use, father‟s filthy home and father‟s history of
domestic violence. The minor was placed in a foster home with Cynthia N. in September
2004, where he has remained.
Mother is tribally affiliated; father is not. In March 2005, the Tyme Maidu Tribe,
Berry Creek Rancheria (the Tribe) filed a notice of tribal intervention, in which it stated
1 Undesignated statutory references are to the Welfare and Institutions Code.
2
the minor is a member of or eligible for membership in the Tribe and is the child of a
member of the Tribe.
In April 2005, prior to the combined disposition and six-month review hearing, the
Tribe filed a “Tribal Resolution for Preferred Placement,” which designated Cynthia N.‟s
home as a “Designated Indian Home” that met the Tribe‟s “prevailing social and cultural
standards and protects the best interests of Indian children.” In the resolution, the Tribe
specifically noted the foster family “is an Indian Family[,] therefore the Indian Child will
stay connected to his tribe and culture and have his special needs met.” Father opposed
this placement. Father wanted the minor to be placed with father‟s relative. The juvenile
court made dispositional findings and orders and set the case for a contested placement
hearing.
The contested placement hearing was held in May 2005. During the hearing, the
court determined the minor to be an Indian child within the meaning of the Indian Child
Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.). As to placement, the court determined it
was not in the minor‟s best interest to deviate from the Tribal preference. Accordingly,
the minor remained with Cynthia N.
Reunification services for both parents were terminated at the 12-month review
hearing in October 2005, and the matter was set for a section 366.26 hearing.
The selection and implementation report for the February 2006 section 366.26
hearing indicated Cynthia N. preferred a permanent plan of adoption, but was willing
to defer to the wishes of the Tribe. The Department recommended a permanent plan
of guardianship, with Cynthia N. being declared the legal guardian. This plan was
consistent with the Tribe‟s preference at that time as reflected in the selection and
implementation report and the Indian child welfare expert‟s report. In February 2006,
Cynthia N. was declared the legal guardian of the minor and the dependency proceedings
were terminated.
3
On July 1, 2010, section 366.24 became operative. The statute establishes tribal
customary adoption as an alternative permanent plan for Indian children. Amendments to
the California Rules of Court addressing tribal customary adoption also became effective
in July 2010. (Cal. Rules of Court, rule 5.708(g)(5), (g)(6), 5.715(b)(5), 5.720(b)(4),
5.722(b)(3), 5.725(d)(1), (d)(2)(C)(vi), (d)(8)(C), (e)(2), (e)(4).)
In April 2011, the Department moved for a change in court order, requesting that
the dependency proceedings be reinstated and a new section 366.26 hearing be set,
because Cynthia N. was planning to move out of state and wanted to adopt the minor.
Father was not present at the hearing. Mother stated she was willing to let Cynthia N.
adopt the minor, because the minor was happy and content with Cynthia N. and she just
wanted the best for the minor. The court resumed dependency jurisdiction and set the
matter for another section 366.26 hearing.
In the October 20, 2011 selection and implementation report, the Department
recommended that the minor be ordered into a permanent plan of adoption and parental
rights be terminated. According to the report, the Tribe had previously stated it would
not object to adoption if mother were willing to relinquish her parental rights. Although
mother had indicated she was willing to relinquish her parental rights, at the time the
selection and implementation report was written, she had not pursued relinquishment.
An Indian child welfare expert, Angelina Arroyo, wrote a report dated October 28,
2011. She interviewed Terilyn Steele, the ICWA director of the Berry Creek Rancheria,
who told her that the Tribe supported the current placement, but did not support forced
termination of parental rights and had not had contact with mother so as to justify support
of adoption.2
2 Arroyo also noted in her report that father had been inactive and uninvolved.
4
The section 366.26 hearing was ultimately heard in December 2011. Father was
present and represented by counsel.
By the time of the hearing, the minor was nine years old and had been living in his
current home for seven years. He was happy living there and fully integrated with his
three step siblings, who had all been adopted by the foster parents. The minor wanted to
be adopted by his foster parents. The mother and father had not sought contact with the
minor. The minor testified that he had not had any visits with either parent in four years. 3
The Department recommended a permanent plan of adoption and termination of parental
rights. Father objected to the plan of adoption, testifying the only way “they‟re going to
get my custody rights is if somebody puts a bullet in me.”4
Arroyo testified she had now been informed mother was going to relinquish her
parental rights. Based on that relinquishment, the Tribe supported a plan of adoption
with Cynthia N. Arroyo also testified that based on her review of the records and
mother‟s relinquishment, continued custody of the children by the biological parents
would result in serious emotional and physical harm to the minor. Arroyo had not
discussed with the Tribe what its view would be if father did not support adoption.
However, even after Arroyo learned father opposed termination of his parental rights,
it was still her recommendation that parental rights be terminated and that adoption be
3 Although the minor testified he had not seen either parent in four years, the selection
and implementation report indicated that the minor had not seen father in four years or
mother for two and a half years. The report indicated that the reason is that the parents
did not seek to contact the minor.
4 Father repeatedly testified the only way his parental rights would be terminated was
“over [his] cold dead body” until the juvenile court admonished him to be careful of his
language in that his testimony was being considered by the court as a threat to the foster
family.
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selected as the permanent plan. Father did not mention the need to consider tribal
customary adoption.
Mother voluntarily relinquished her parental rights. Based on the evidence,
including Arroyo‟s testimony, the court found beyond a reasonable doubt “that continued
custody of the child by the parents is likely to result in serious emotional or physical
damage to the child.” Thus, father‟s parental rights were terminated. The court also
found by clear and convincing evidence it was likely the minor would be adopted.
Accordingly, adoption was selected as the permanent plan. About one week later, the
Tribe withdrew its intervention, stating that the Tribe “does not intervene in cases
involving an Indian Mother Relinquishing her Parental Rights Voluntarily to a Native
Home.”
DISCUSSION
On appeal, father contends the order terminating his parental rights must be
reversed. For the first time, father complains that the juvenile court failed to comply with
section 366.24 and ensure the Tribe considered whether tribal customary adoption was
the appropriate permanent plan for the minor. In the face of the Department‟s concession
that the error required reversal, we requested supplemental briefing on: (1) whether the
issue was forfeited for failure to raise it in the trial court, and (2) whether any error was
harmless. Both parties responded.
We conclude that the failure to object to deficiencies in the selection and
implementation report or errors at the section 366.26 hearing related to the tribal
customary adoption procedures forfeits those issues on appeal. Furthermore, even if
the claims were not forfeited, any error here is harmless.
A. Forfeiture
At a section 366.26 hearing, the juvenile court determines a permanent plan of
care for a dependent child. (§ 366.26, subd. (b); In re Casey D. (1999) 70 Cal.App.4th 38,
50.) The general statutory preference is to terminate parental rights and place the child
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for adoption. (§ 366.26, subd. (b)(1); In re Celine R. (2003) 31 Cal.4th 45, 53.)
However, the Legislature established tribal customary adoption as an alternative
permanent plan for Indian children, which became operative July 1, 2010. (Stats. 2009,
ch. 287, § 12.) Tribal customary adoption is an “adoption by and through the tribal
custom, traditions, or law of an Indian child‟s tribe. Termination of parental rights is
not required to effect the tribal customary adoption.” (§ 366.24, subd. (a)(1).)
The procedures for tribal customary adoption are set forth both in statutes
and rules of court. Whenever an assessment is ordered under section 366.26, “the
assessment shall address the option of tribal customary adoption.” (§ 366.24, subd. (b).)
At the section 366.26 hearing, the juvenile court must find that “the agency consulted
with the child‟s tribe and the tribe was actively involved in the development of the
case plan and plan for permanent placement, including consideration of whether
tribal customary adoption is an appropriate permanent plan for the child . . . .”
(Rule 5.725(d)(8)(C).) If the court finds that the agency did not consult with the child‟s
tribe, it “must order the agency to consult with the tribe, unless the court finds that the
tribe is unable, unavailable, or unwilling to participate.” (Rule 5.725(d)(8)(D).)
Father belatedly notes that these requirements were not met. Specifically, father
complains the selection and implementation report did not indicate the Department had
consulted with the Tribe about tribal customary adoption and did not address the option
of tribal customary adoption. And, the juvenile court did not find the Department had
consulted with the Tribe about tribal customary adoption, did not order the Department
to do so, and did not consider the appropriateness of tribal customary adoption as a
permanent plan. Father, however, did not object to any of these deficiencies at the
December 2011 section 366.26 hearing.
“ „An appellate court will ordinarily not consider procedural defects or erroneous
rulings in connection with relief sought or defenses asserted, where an objection could
have been, but was not, presented to the lower court by some appropriate method.‟
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[Citation.]” (In re Dennis H. (2001) 88 Cal.App.4th 94, 98.) This is the general rule,
because any other rule would allow a party to deliberately stand by in silence and
permit the proceedings to reach a conclusion in which the party could acquiesce if
favorable and avoid if unfavorable. (In re Riva M. (1991) 235 Cal.App.3d 403, 412
(Riva M.), citing In re Christian J. (1984) 155 Cal.App.3d 276, 279.) The forfeiture
doctrine has been applied in dependency proceedings in a wide variety of contexts,
including cases involving failures to obtain various statutorily required reports (In re
Dakota S. (2000) 85 Cal.App.4th 494, 502); failure to object to the adequacy of an
adoption assessment (In re Urayna L. (1999) 75 Cal.App.4th 883, 885-886 (Urayna L.);
In re Aaron B. (1996) 46 Cal.App.4th 843; In re Crystal J. (1993) 12 Cal.App.4th
407, 411-412); failure to request an alternative placement (In re Daniel D. (1994)
24 Cal.App.4th 1823, 1830-1831); and failure to require expert testimony and to make
the required findings using the beyond-a-reasonable-doubt standard as mandated by
ICWA (Riva M., supra, 235 Cal.App.3d at p. 411).
This is also an appropriate case to apply the forfeiture rule. The provisions
regarding tribal customary adoptions are part of a state statutory scheme intended to
allow Indian children the permanence offered by adoption without disrupting their
ability to fully participate in tribal membership. (In re H.R. (2012) 208 Cal.App.4th
751, 760-761 (H.R.).) Thus, like in Riva M., the errors here do not involve the
fundamental jurisdiction of the court to act, but rather are errors related to the procedural
standards of the scheme. (Riva M., supra, 235 Cal.App.3d at p. 412.) The selection and
implementation report was prepared and available to the parties well in advance of the
properly noticed December 2011 section 366.26 hearing. A timely objection would
have enabled the court to ensure the issue of tribal customary adoption was appropriately
addressed and considered by the social worker and the Tribe. The objection would have
further ensured that the court made the required findings. Instead of raising these
procedural matters in the trial court, father now belatedly seeks to avoid a result that
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turned out to be unfavorable. Accordingly, we will not consider this issue for the
first time on appeal. (See Urayna L., supra, 75 Cal.App.4th at p. 886.) We therefore
conclude father forfeited the right to complain that his parental rights had been
terminated without an adequate selection and implementation report or a finding of
consultation regarding tribal customary adoption and consideration of it as required
by section 366.24, subdivision (b). (See Urayna L., supra, 75 Cal.App.4th at p. 886;
In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1339.)
B. Harmless Error
Even if the issue was not forfeited, any failure to address tribal customary
adoption and make the requisite findings here was harmless. One of the purposes of
ICWA is “to protect the best interests of Indian children and to promote the stability and
security of Indian tribes and families by the establishment of minimum Federal standards
for the removal of Indian children from their families and the placement of such children
in foster or adoptive homes which will reflect the unique values of Indian culture.”
(25 U.S.C. § 1902.) It is presumptively in “the best interests of the child to retain tribal
ties and cultural heritage and in the interest of the tribe to preserve its future generations.”
(In re Desiree F. (2000) 83 Cal.App.4th 460, 469.) Thus, the policy underlying both the
state and federal statutes regarding Indian children is “ „ “that, where possible, an Indian
child should remain in the Indian community . . . .” ‟ (Mississippi Choctaw Indian
Band v. Holyfield [ (1989) 490 U.S. 30,] 37.” (In re W.B., Jr. (2012) 55 Cal.4th 30, 48;
see § 224, subd. (a)(2); 25 U.S.C. § 1902.)
Because “the termination of parental rights will normally cause detriment
to an Indian child by interfering with his or her tribal connections” (H.R., supra,
208 Cal.App.4th at p. 763), tribal customary adoption is intended to further the
underlying federal and state policies by providing “the minor with the same stability
and permanence of traditional adoption without terminating parental rights” (ibid).
With tribal customary adoption, “an Indian child's interest in stability and permanence
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no longer provides a counterbalance to the child's interest in maintaining his or her tribal
connection.” (Ibid.) Consideration of tribal customary adoption is not required under
ICWA. Rather, consideration of tribal customary adoption is required by state law,
enacted pursuant to ICWA‟s authorization to states to provide “a higher standard of
protection . . . than the rights provided under [the ICWA].” (25 U.S.C. § 1921; see In re
S.B. (2005) 130 Cal.App.4th 1148, 1158.) “[A]ny failure to comply with a higher state
standard, above and beyond what the ICWA itself requires, must be held harmless unless
the appellant can show a reasonable probability that he or she would have enjoyed a more
favorable result in the absence of the error. (Cal. Const., art. VI, § 13; People v. Watson
(1956) 46 Cal.2d 818, 836.)” (S.B., supra, 130 Cal.App.4th at p. 1162.) Father has not
met this burden.
The minor‟s Native American heritage derived solely through mother. Upon
being advised that mother would relinquish her parental rights, the Tribe supported the
plan of adoption by Cynthia N. When mother voluntarily relinquished her parental
rights, the Tribe withdrew its intervention in the case, stating it “does not intervene in
cases involving an Indian Mother Relinquishing her Parental Rights Voluntarily to a
Native Home.” There is nothing in the record which suggests the Tribe was concerned
with the non-Indian father‟s ability to maintain his relationship with the minor. Nor is
there any evidence that maintaining the non-Indian father‟s parental relationship with
the minor would protect the minor‟s interest in maintaining his tribal connection. In fact,
the record suggests father‟s relationship was of no consequence to the minor‟s tribal
connection.
By contrast, Cynthia N. has significant tribal ties. Although she herself is not
Native American, she was raised with half siblings with Native American heritage
who were tribally affiliated, and she understands the importance of the tribal culture.
Cynthia N. has two children who are Maidu, their father being a Maidu member who
lives on the reservation. The Tribe designated the foster family an Indian family, and
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found the home was a placement that met the Tribe‟s “prevailing social and cultural
standards” and would enable the minor to remain “connected to his tribe and culture.”
That is, Cynthia N.‟s home was better able to “reflect the unique values of Indian
culture” and impart them to the minor. (25 U.S.C. § 1902.) Furthermore, in this
case, it was adoption by Cynthia N., rather than maintenance of the parental relationship
with the non-Indian parent, which best preserved the minor‟s tribal relationship.
Mother voluntarily relinquished her parental rights specifically to permit
Cynthia N. to adopt the minor. The nine-year-old minor had been living with his
foster family for seven years, was happy there and was excited to be adopted by them.
He had not had visits with father in approximately four years. While the minor was
interested in future contact with his parents, he was satisfied having Cynthia decide
whether that could happen. The minor also had no interest in speaking with father
before parental rights were terminated.
Tribal customary adoption is only an option when the child‟s tribe identifies it as
an option. (§ 366.24, subd. (c)(6); H.R., supra, 208 Cal.App.4th at pp. 764-765.) Here,
the Tribe did not identify it as an option. Although the record does not reflect that the
Tribe discussed tribal customary adoption with the social worker, the record does reflect
that the Tribe was involved in the selection of the appropriate permanent plan for the
minor, and, upon voluntary relinquishment of mother‟s parental rights, the Tribe
supported adoption by Cynthia N. We have no reason to speculate that the Tribe was
unaware of tribal customary adoption as an alternative permanent plan. Further, at no
time did the Tribe express any concern over the status of father‟s parental rights. The
Indian child welfare expert also recommended adoption. The fact that father did not
voluntarily relinquish his rights did not support adoption and did not want his rights
terminated did not change the expert‟s recommendation.
On this record, father has not shown a reasonable probability that compliance
with the procedural requirements of tribal customary adoption would have resulted in
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an outcome more favorable to him. Thus, we conclude the errors complained of are
harmless.
DISPOSITION
The order of the juvenile court is affirmed.
MURRAY , J.
We concur:
BLEASE , Acting P. J.
MAURO , J.
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