Filed 3/23/22 In re L.C. CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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In re L.C. et al., Persons Coming Under the Juvenile C094535
Court Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. Nos.
CHILD, FAMILY AND ADULT SERVICES, JD239750, JD239751)
Plaintiff and Respondent,
v.
MAR.C. et al.,
Defendants and Appellants.
Mar.C. (mother) and Man.C. (father), parents of the minors, appeal from the
juvenile court’s orders terminating parental rights and freeing the minors for adoption.
(Welf. & Inst. Code, §§ 366.26, 395.)1 The parents claim the juvenile court erred in
1 Undesignated statutory references are to the Welfare and Institutions Code.
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failing to find termination of parental rights was detrimental to and not in the best
interests of the minors where tribal authorities indicated a preference for guardianship for
the enrolled minor. We disagree and will affirm the juvenile court’s orders.
BACKGROUND
A detailed recitation of the background of this case is unnecessary given the
limited nature of the parents’ claim. The facts and procedure relevant to the sole issue on
appeal are as follows.
The minors, L.C. (then three years old) and her half sibling T.C. (then five years
old), came to the attention of the Sacramento County Department of Child, Family and
Adult Services (the Department) after reports that the parents had a history of, and had
recently been engaging in, domestic violence in the presence of the minors. The minors
were removed from the parents, and the Department filed dependency petitions on behalf
of the minors pursuant to section 300, subdivision (b).
The juvenile court ordered the minors detained and that they remain placed in the
home of the maternal cousin and her husband, where they had been staying pending the
jurisdiction/disposition hearing. The court found Man.C. to be the presumed father of
L.C., and also found that R.M. “may be the adjudicated father” of T.C. Mother and
Man.C. denied any Indian heritage with respect to L.C. and the court found L.C. was not
an Indian child for purposes of the Indian Child Welfare Act (the ICWA) (25 U.S.C.
§ 1901 et seq.). As for T.C., mother informed the social worker that R.M. had Indian
heritage with an unknown tribe.
In May 2019, the court sustained the allegations in the petitions and exercised
jurisdiction over the minors, adjudged L.C. a dependent of the juvenile court, and ordered
continued out-of-home placement for L.C. with reunification services and visitation for
the parents. The following month, the court adjudged T.C. a dependent of the juvenile
court and ordered continued out-of-home placement and reunification services for
mother. The court also reviewed R.M.’s parental notification of Indian status indicating
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he was or might be a member of, or eligible for membership in, the Round Valley Indian
Tribe (the Tribe), and directed the Department to conduct the appropriate ICWA
inquiries.
Following several relative placement hearings, and submission of all counsel on
the recommendation for placement, the court ordered the minors remain placed with the
maternal cousin and her husband, an approved resource family. As of June 17, 2020, the
minors were still living with and maintained a healthy attachment to the maternal cousin
and her husband, who were willing to provide permanency for the minors.
The Department eventually recommended the court terminate services to the
parents and set the matter for a section 366.26 hearing, reporting the parents failed to
make progress in their case plan services and failed to demonstrate long-lasting
behavioral changes on the issues that resulted in the minors’ removal. The parents’
failure to progress in services continued and, on October 1, 2020, the court terminated
services and set the matter for a section 366.26 hearing.
Before the section 366.26 hearing, the Department filed a section 388 petition,
based on information obtained from the Tribe that T.C.’s father was an enrolled member
and T.C. was eligible for membership, requesting that the court find T.C. to be an Indian
child within the meaning of the ICWA. The court granted the petition on January 6,
2021, found T.C. to be an Indian child, and ordered the Department to provide notice to
the Tribe and comply with all ICWA requirements.
The January 2021 selection and implementation report stated the ICWA did not
apply to L.C. but did apply to T.C., and that the Department provided the required ICWA
notices to the Tribe. The Department noted that it remained in contact with the tribal
social worker and continued to assess permanency for T.C. The minors had been with
the maternal cousin and her husband for nearly two years and had adjusted well to
placement, making significant strides in mental health stabilization and achieving at or
above grade level for their respective ages. The Department assessed the minors and
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determined them both to be generally adoptable due to their young age, good overall
health and development, and mental health stability, and recommended a permanent plan
of adoption. The caregivers were supportive of T.C.’s Indian heritage and agreed to keep
her connected to the Tribe through cultural events and “open communication.” For its
part, the Tribe wanted to maintain the minor’s connection to the Tribe, but did not
support a tribal customary adoption, agreeing only to a permanent plan of legal
guardianship.
On January 21, 2021, the ICWA expert Richard England, Sr., a licensed clinical
social worker, prepared a report regarding the minors wherein he opined that based on his
review of the information provided to him, placement of the minors in the parents’ home
was likely to result in serious emotional or physical damage to the minors. He further
opined that the minors were placed in a preferred ICWA relative placement where they
were doing extremely well, and their current placement was the “most appropriate and
least restrictive setting at this time that most approximates a family situation taking into
consideration the needs of the Indian child.” England reported that the social worker and
the current caregivers assured him the minors would have “every opportunity available to
have the opportunity to develop and maintain a meaningful connection to their Tribal
culture and Tribal community,” which he felt was very positive for the minors and
important for their overall health, development, and well-being. He noted how important
it was for Indian children to learn about and be connected to their tribal heritage “because
it promote[d] the ongoing existence of their Tribe” and enabled the children to pass on
oral history to the next generation to support and strengthen the Tribe. He noted further
that the Tribe had a “great support system” within its tribal community that advocated
strongly for their families and children to participate in and learn about their customs,
traditions, ceremonies, and culture in general. Tribal activities and gatherings also
provided opportunities for non-Indian siblings to participate in and learn about the
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Tribe’s culture. Finally, England noted the Tribe supported guardianship but not a
traditional or a tribal customary adoption as the permanent plan for the minors.
The Department reported that during a February 2, 2021 child and family team
meeting attended by the parents, the social worker, the tribal social worker, and the
caregivers, the tribal social worker again confirmed that the Tribe supported only legal
guardianship and rarely offered tribal customary adoptions, which were “only done for
special circumstances.” The team agreed that guardianship for both minors would be
more appropriate than adoption for L.C. and guardianship for T.C. The team discussed
T.C.’s enrollment in the Tribe, and the tribal social worker reported she would inform the
enrollment center and complete an emergency enrollment.
In an addendum report, the Department stated that it had attempted unsuccessfully
to contact the tribal social worker and the child and family services director on at least
three occasions to request to be heard by the tribal council regarding a tribal customary
adoption for T.C. The Department decided that keeping T.C.’s connection with the Tribe
outweighed the benefits of a traditional adoption. The caregivers supported a common
permanency plan for both minors and were therefore open to providing the minors with
permanency in the form of a guardianship. Based on the minors’ sibling bond and the
considerable amount of time in placement, the Department recommended a permanent
plan of legal guardianship for both minors.
At the initial selection and implementation hearing, the tribal social worker
informed the court that T.C. would lose her connection with the Tribe in the event of a
traditional adoption, and that the Tribe did not agree to adoption as the permanent plan.
However, the representative confirmed that if T.C.’s tribal membership were established,
she would be recognized as a member of the Tribe and the tribal resources would
continue to be available to her even if she were adopted by someone else. The court
continued the hearing to allow the parties to gather more information as to the status of
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T.C.’s enrollment with the Tribe and what benefits she stood to lose if parental rights
were terminated and she were adopted.
In a fourth addendum to the section 366.26 report, the Department reported the
tribal social worker’s confirmation that once T.C. became an enrolled member of the
Tribe, she would be eligible for numerous tribal benefits, including a parcel of land once
she turned 18 years old, medical care at Indian clinics, receipt of tribal temporary
assistance for needy families, and COVID-19 pandemic relief funds, as well as
knowledge about her extended family and education regarding the history of the Tribe.
The ICWA director reported that once enrolled in the Tribe, T.C. would be eligible for
benefits including heirship land, housing, tribal temporary assistance to needy families,
cultural resources, education, free healthcare, tax exemption, and other benefits. The
ICWA director reported that traditional adoption could affect enrollment, however,
because the Tribe did not support traditional adoption and T.C. would be at risk of losing
her benefits should she be adopted. Given the conflicting information provided by the
ICWA director and the tribal social worker, the Department recommended traditional
adoption for both minors once T.C.’s enrollment was completed so that her access to
tribal benefits would not be disrupted. However, if termination of parental rights would
make T.C. ineligible for tribal benefits, the Department recommended legal guardianship
for both minors with the current caregivers, as “tribal benefits outweigh the benefits of
adoption.”
The court again continued the section 366.26 hearing to ensure T.C. was enrolled
with the Tribe. During a subsequent pretrial conference, the court was informed that T.C.
had become an enrolled member in the Tribe on May 13, 2021.
On June 28, 2021, the Department reported that T.C.’s enrollment in the Tribe was
certified on May 14, 2021. Despite numerous attempts by the Department to
communicate with the Tribe regarding the potential impact of a traditional adoption on
T.C.’s tribal benefits, the Tribe did not respond.
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The contested section 366.26 hearing commenced on July 22, 2021. The ICWA
expert, Richard England, testified consistent with his January 21, 2021, report. The
Department recommended termination of parental rights to free the minors for adoption.
Minors’ counsel informed the court that the Tribe’s enrollment clerk had confirmed that
T.C. was an enrolled member of the Tribe and neither termination of parental rights nor
adoption would affect T.C.’s membership with the Tribe.
The Tribe’s representative at the hearing stated, “My update from our director is
she had said the tribe does not agree. The tribe wants guardianship, not adoption.” The
court inquired, “Did you have any other argument as to why I should select a less
permanent plan for the child?” The Tribe’s representative responded, “I don’t. That’s
what I have from our director.” The parents objected to termination of parental rights and
adoption, arguing legal guardianship was the Tribe’s preferred plan for T.C. and should
be ordered for both minors given the sibling relationship.
The court found the minors were likely to be adopted and there was no compelling
reason to determine that termination of parental rights would be detrimental to the
minors. In that regard, the court noted it had no evidence before it that termination would
substantially interfere with T.C.’s connection to her tribal community or her tribal
membership rights. The court stated that while the Tribe’s opinion that guardianship was
the desired plan “does carry some level of weight,” the court viewed T.C. “in conjunction
with the other evidence before [it] and that is that there is a sibling in the home, and that
sibling is very much an adoptable child.” The court further noted that the Department
attempted to obtain specific information from the Tribe to allow the court and the
Department to conduct a full assessment of T.C.’s well-being, but the Tribe had not
provided much information or shown a willingness to engage with the Department to
provide the requested information.
The court found the evidence was not adequate to support a finding that the
Tribe’s desire for guardianship was consistent with T.C.’s best interests. The court also
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noted that legal guardianship was “nowhere near as permanent as adoption” and would
mean the minors “somewhat live in some level of limbo with the parents able to file
ongoing petitions to seek to terminate that guardianship and disrupt the children’s
stability and life even if it’s only for the purposes of the ongoing proceedings regarding
whether or not it’s appropriate to terminate that guardianship.” Based on T.C.’s
relationship with L.C., the connection between the siblings, and the “family household
that she is in,” the court found that freeing both minors for adoption was consistent with
the best interests of both children and therefore terminated parental rights.
DISCUSSION
The parents contend the juvenile court erred when it found termination of parental
rights was in T.C.’s best interests and would not be detrimental to her. We find no merit
to this claim.
“ ‘At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must make one of four possible alternative permanent plans for a minor
child. . . . The permanent plan preferred by the Legislature is adoption. [Citation.]’
[Citation.] If the court finds the child is adoptable, it must terminate parental rights
absent circumstances under which it would be detrimental to the child. [Citation.]”
(In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, original italics.)
Before the juvenile court may find an exception to adoption for an otherwise
adoptable child, a parent must establish a “compelling reason for determining that
termination would be detrimental to the child” due to one of several specified
circumstances. (§ 366.26, subd. (c)(1)(B).) One such exception is when “[t]he child is an
Indian child and there is a compelling reason for determining that termination of parental
rights would not be in the best interest of the child, including, but not limited to: [¶] . . .
[¶] . . . The child’s tribe has identified guardianship, foster care with a fit and willing
relative, tribal customary adoption, or another planned permanent living arrangement for
the child.” (§ 366.26, subd. (c)(1)(B)(vi)(II).)
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“The parent has the burden of establishing the existence of any circumstance that
constitutes an exception to termination of parental rights. [Citation.] ‘Because a section
366.26 hearing occurs only after the court has repeatedly found the parent unable to meet
the child’s needs, it is only in an extraordinary case that preservation of the parent’s
rights will prevail over the Legislature’s preference for adoptive placement.’ [Citation.]”
(In re T.S. (2009) 175 Cal.App.4th 1031, 1039.) “We review the juvenile court’s ruling
declining to find an exception to termination of parental rights for abuse of discretion.
[Citation.]” (Id. at p. 1038.)
Here, the minors were found to be generally adoptable, a finding the parents do
not dispute. The parents therefore were required to establish a compelling reason for the
court to determine that termination of parental rights would be detrimental to the minors.
(§ 366.26, subd. (c)(1)(B).) Correctly acknowledging that the court was not required to
follow the Tribe’s recommendation for a permanent plan, and admitting there was
evidence that T.C.’s relative caregivers would encourage the minor to be active in efforts
to stay connected to her tribe, the parents nevertheless point to the Tribe’s preference for
a legal guardianship and argue that termination of parental rights was “premature”
because the evidence showed T.C.’s tribal membership rights and benefits would “likely
be interfered with as reflected in the Tribe’s concerns.”
Relying on only a portion of the tribal social worker’s statements, the parents
ignore evidence before the court to the contrary. The tribal social worker ultimately
confirmed that once T.C. became an enrolled member, the Tribe would “always
recognize her as a member” and provide her with tribal resources “even if she is adopted
by somebody else.” The Department confirmed that T.C.’s enrollment in the Tribe was
certified on May 14, 2021. Thereafter, at the selection and implementation hearing,
minors’ counsel informed the court of the Tribe’s e-mail confirming that T.C. had
become an enrolled member and that neither termination of parental rights nor adoption
would affect T.C.’s membership in the Tribe. The Tribe’s representative who appeared at
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the hearing reiterated the Tribe’s strong preference for guardianship in order to preserve
T.C.’s connection to the Tribe, but when asked by the court why a less permanent plan
should be selected for T.C., had nothing to add. Neither the Tribe’s representative nor
the parents provided any additional evidence to demonstrate that adoption was not in
T.C.’s best interest.
We conclude the juvenile court did not abuse its discretion in declining to find an
exception to adoption based on the Tribe’s identification of legal guardianship as its
preferred permanent plan. (In re T.S., supra, 175 Cal.App.4th at p. 1040 [holding that
juvenile court has discretion to find adoption in child’s best interest even where a tribe
identifies guardianship as its preferred permanent plan].)
DISPOSITION
The juvenile court’s orders are affirmed.
KRAUSE , J.
We concur:
HOCH , Acting P. J.
EARL , J.
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