[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 943
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 944 OPINION
Terri R. appeals the judgments terminating her parental rights to her children, Barbara R. (Jade) and Kelsy N. under Welfare and Institutions Code section 366.26.1 Terri contends her rights to maintain her parental status to Jade under the Indian Child Welfare Act (ICWA),25 United States Code section 1901 et seq., were violated by the lack of a current judicial finding that Jade's return to parental custody would be detrimental to her. She argues that, due to the children's divergent interests, Jade's attorney was subject to conflict and provided Jade with ineffective assistance of counsel.
We requested supplemental briefing from the parties whether Jade should have been appointed a guardian ad litem to protect any rights or interests to which she may be entitled as a member of the Sycuan Band of the Kumeyaay *Page 945 Nation. Terri argues the court had a sua sponte duty under California Rules of Court,2 rule 1438(g)(3)3 to appoint a guardian ad litem. She contends an investigation into tribal benefits would provide "a clear understanding of the situation and needs of the child" as required of a guardian ad litem by rule 1448(d)(1).
We conclude Terri did not show the court's finding under25 United States Code section 1912(f) was stale. We also conclude minors' counsel was not subject to conflict. Because counsel effectively performed his duties as required by section 317, subdivisions (c) and (e), the court had no obligation to appoint a separate guardian ad litem or take other action under rule 1438(g). We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND On March 7, 2005, the juvenile court terminated parental rights to Jade, born May 1994, and to Kelsy, born September 2001, freeing the children for adoption by Kelsy's paternal grandmother and her husband (Grandparents). Jade's alleged father was Michael M.,4 a member of the Sycuan Band of the Kumeyaay Nation. Jade was also an enrolled member of the tribe. The Sycuan Band of the Kumeyaay Nation did not intervene in the proceedings.
Kelsy was not an Indian child. Her presumed father was Kevin N.5
In July 2004, Terri and Kevin filed proceedings in mandate challenging the juvenile court orders terminating their reunification services and setting a hearing under section 366.26. Because the factual and procedural background of the case is set forth in detail in that opinion, we review it only briefly here. (See Terri R. v. Superior Court (July 6, 2004, D043906) [nonpub. opn.].)
In October 2002, eight-year-old Jade and one-year-old Kelsy were removed from parental custody after Terri and Kevin had a violent confrontation that left the family home in shambles. The children were not home during the altercation; however, upon investigation, the San Diego County Health and *Page 946 Human Services Agency (the Agency) learned the children had been exposed to other incidents of domestic violence and Terri and Kevin had histories of substance abuse problems.
In October 2002, the Agency filed petitions under section 300, subdivision (b) alleging Jade and Kelsy were at substantial risk of serious harm as a result of domestic violence between Terri and Kevin. The parties submitted to jurisdiction. In January 2003, after a contested disposition hearing, the court placed the children with Grandparents over Terri's objections. Terri believed Grandparents would not facilitate reunification efforts. Although Jade's placement with a nonrelative was not a placement preference under ICWA, 25 United States Code section 1912(f), the Sycuan Band of the Kumeyaay Nation did not object.
In October and December 2002 and January 2003, Terri tested positive for methamphetamine. The court ordered her to participate in the Substance Abuse Recovery Management System (SARMS). Terri did not attend SARMS and was terminated from the program. Terri's visits with the children were marred by her anger at the social workers and Grandparents. Terri's (and Kevin's) verbal abuse and foul language frightened Jade. Jade said she did not want to visit Terri and Kevin because they were always angry. In January 2003 the court suspended visitation.
In August 2003, shortly before the conclusion of the contested six-month review hearing, Terri reenrolled in SARMS. She started counseling, enrolled in a parenting class and domestic violence program and continued outpatient substance abuse treatment. Terri and Kevin were no longer together. The court reauthorized supervised visitation. The children enjoyed their visits with Terri. Indian child welfare expert, Lydia Rochfort, recommended continued out-of-home placement until Jade could be reunified with Terri. Although the Agency recommended the case be referred for a section 366.26 hearing (permanency hearing), the court found Terri made some progress toward reunification and continued services.
During the next six-month review period, Terri's visitation with the children was positive. Jade expressed a desire to live with Terri. Terri continued therapy, finished a parenting class and completed an out-patient treatment program. However, after she tested positive for opiates in September 2003, Terri refused to test with SARMS. In December 2003 Terri had a *Page 947 physical altercation with a sister and brother-in-law. That same month a visit with the children was cancelled after Terri displayed hostility toward the social worker supervising the visit. In April 2004 Terri was discharged from a domestic violence program due to excessive absences.
At the 12-month review hearing in March 2004, the Agency asked the court to terminate reunification services and set a permanency hearing under section 366.26. For Kelsy, the Agency recommended termination of parental rights and adoption by Grandparents. For Jade, out of respect for the tribe's opposition to adoption and "to preserve her Indian rights," the Agency recommended guardianship with Grandparents.
The Sycuan Band of the Kumeyaay Nation opposed adoption because Jade would lose her culture and because, as a tribal member, she was entitled to significant benefits, including a monthly financial stipend, funding for higher education, medical and dental coverage, and a home on the reservation. Jade's tribal benefits appeared to include a monthly stipend of $1,500 placed in trust until age 18, an increased monthly stipend after age 18, free higher education, housing on the reservation, and medical and dental coverage. In her December 2003 declaration, Rochfort recommended the court establish a guardianship for Jade with Grandparents.
In March 2004, at the conclusion of the contested 12-month review hearing, the court found active efforts were made to provide remedial services to reunite Jade with her family and those efforts were unsuccessful. (25 U.S.C. § 1912(f).) The court found beyond a reasonable doubt that returning the children to parental custody would create a substantial risk of detriment to their safety, protection, or physical or emotional well-being. (See § 366.21, subd. (f); rule 1439(m).) The court terminated services and scheduled a permanency hearing.
Social workers supervising visitation noticed a decline in Jade's interaction with Terri. Jade began to express a desire to be adopted by Grandparents. She called them "mom" and "dad." She did not want to visit Terri. In August 2004, at Jade's request, the court temporarily suspended Terri's visitation with Jade. At a special hearing in September 2004, Jade testified she was angry with Terri "because she didn't try hard to get us back." Jade reported she suffered from stomachaches and headaches before and after visits. She was afraid of Terri's temper. The court suspended Terri's visitation, finding it was detrimental to the children. *Page 948
On January 11, 2005, the Agency changed Jade's permanency recommendation from guardianship to adoption. The adoptions social worker, Jodi Squires, recommended guardianship because she did not want to "cause [Jade] to lose her tribal benefits." However, Squires changed her recommendation when she learned there was a possibility Jade could remain a member of the tribe were parental rights terminated.
On February 3, 2005, Terri filed a section 388 petition asking the court to vacate the section 366.26 hearing and to reinstate reunification services and visitation. She requested the court place the children with her sister, whose home had been approved for placement. Terri stated she had maintained her sobriety since October 2003 and had not been in a relationship with Kevin for two years. She asserted the children's best interests were served by a modification of prior orders because Grandparents were unsuitable custodians, manipulated the children against her, and had no biological or tribal ties to Jade. The court denied Terri an evidentiary hearing on the petition.
At the permanency hearing, social worker Squires testified she originally recommended the court establish a guardianship for Jade because she believed the Agency was required by law to choose a permanency plan other than adoption if the tribe objected. Jade felt strongly about wanting Grandparents to adopt her. In Squires's experience, it was unusual for a 10 year old to be that clear about her desire to be adopted. Squires believed any financial benefit Jade might receive from continued tribal membership would be outweighed by the emotional security of adoption.
Jade testified she wanted Grandparents to adopt her because she liked them. She wanted to live with her sister and Grandparents.
In her testimony, Grandmother said Jade did not understand why her sister could be adopted and she could not. After discussions with Jade, Grandparents decided adoption was better for her despite any loss of financial benefits. Grandmother understood Jade might lose her status as a registered member of the tribe if adopted and could reapply for membership at age 18. Grandparents never took Jade to a Sycuan cultural event; they would allow Jade to decide whether to maintain her connection with the tribe.
Carol Banegas, a social worker with the Southern Indian Health Council (SIHC), testified she recently reviewed the case and consulted with Southern Indian Health. The tribe remained opposed to adoption. Its opposition was not solely based on financial considerations. The tribe was concerned Jade would *Page 949 lose her culture if adopted. Banegas was aware Jade was eligible for trust monies and other benefits, but she did not have specific information concerning Jade's continued eligibility if parental rights were terminated. There was some indication Jade could reapply for tribal membership at age 18 and regain tribal benefits if readmitted.
The court suggested the parties provide the court an offer of proof stipulating to "exactly what this child is entitled to." Minors' counsel objected to the admission of any evidence concerning Jade's tribal interests and rights and stated he would not stipulate to such an offer of proof. He stated the existence of financial benefits was not relevant to the issues raised in a permanency hearing under section 366.26.
The court found it was likely both children would be adopted. Grandparents had become the children's surrogate parents and the children were bonded with them. The court determined that no exceptions applied under section 366.26, subdivision (c)(1), and terminated parental rights.
DISCUSSION Terri's appeal is based solely on alleged ICWA violations. Kelsy is not an Indian child within the meaning of ICWA. Terri does not make any argument to support a theory of error as to Kelsy. Therefore, we treat her appeal as to Kelsy as abandoned. (Rule 14(a); Estate of Randall (1924) 194 Cal. 725, 728-729 [230 P. 445]; Berger v. Godden (1985)163 Cal.App.3d 1113, 1119-1120 [210 Cal.Rptr. 109].)
I Terri argues the juvenile court erred when it did not renew the evidentiary finding required by25 United States Code section 1912(f) at the permanency hearing. Before terminating parental rights to an Indian child, ICWA requires the court find by evidence beyond a reasonable doubt that continued parental custody would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child (ICWA detriment finding). (25 U.S.C. § 1912(f); rule 1439(m).) This finding must be supported by the testimony of an Indian child welfare expert. (Ibid.)
In In re Matthew Z. (2000) 80 Cal.App.4th 545 [95 Cal.Rptr.2d 343] (Matthew Z.), we concluded a California court must make the finding required by ICWA,25 United States Code section 1912(f), before it terminates parental rights. "The finding generally should be made at the final review hearing at which a section 366.26 hearing is scheduled. If this finding was made, a court need not readdress the issue at the [permanency] hearing, unless the parent *Page 950 presents evidence of changed circumstances or shows the finding was stale because the period between the referral hearing and the section 366.26 hearing was substantially longer than the 120-day statutory period." (Id. at pp. 554-555.) The court's finding must be supported by the testimony of an Indian child welfare expert. (25 U.S.C. § 1912(f).)
Terri contends the ICWA detriment finding was made stale by the substantial period of time between the March 2004 12-month review hearing (referral hearing) and the February/March 2005 permanency hearing.6 The Agency contends Terri did not present sufficient evidence to show changed circumstances and did not show the evidence supporting the ICWA detriment finding was stale. The Agency asserts the court did not erroneously terminate parental rights because substantial evidence supports a current ICWA detriment finding.
We review the court's findings made pursuant to ICWA for supporting evidence which is "reasonable, credible and of solid value." (In re Michael G. (1988) 63 Cal.App.4th 700,715 [74 Cal.Rptr.2d 642].) We review the record in a light most favorable to the judgment and uphold the trial court's finding unless it can be said that no rational fact finder could reach the same conclusion. (Id. at pp. 715-716.) The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's finding or order. (In re L.Y.L. (2002) 101 Cal.App.4th 942, 947 [124 Cal.Rptr.2d 688]; In re Geoffrey G. (1979)98 Cal.App.3d 412, 420 [159 Cal.Rptr. 460].)
Terri raises a valid concern about the length of time between the March 2004 ICWA detriment finding and the February/March 2005 permanency hearing. In Matthew Z, we held that a five-month period between the referral and permanency hearings was not substantially longer than the 120-day statutory period. (Matthew Z., supra, 80 Cal.App.4th at pp. 554-555.) Here, obviously, the 11-month period between the referral and permanency hearings was substantially longer than the preferred 120-day statutory period. However, reversal is not automatic; the burden remains on the parent to show the finding was stale. (Id. at p. 555.)
In a declaration dated December 11, 2003, Indian child welfare expert Rochfort stated active efforts were made to provide remedial services and *Page 951 rehabilitative programs designed to prevent the breakup of this family and Indian child. She opined that parental custody was likely to result in serious emotional or physical damage to Jade due to Terri's and Kevin's lifestyle.
Terri contends she showed changed circumstances in that she maintained her sobriety for 18 months and no longer had a relationship with Kevin. She completed a drug rehabilitation program in November 2003. Terri argues the initial reasons for the dependency no longer existed.
The Agency points out Terri did not comply with the drug testing component of her case plan after she tested positive for opiates in September 2003. The Agency also contends that, although Terri was no longer involved with Kevin, the underlying issue of deficiencies in anger management affected her relationships as recently as December 2003, when she had a physical altercation with her sister and brother-in-law. In April 2004 Terri was discharged from a domestic violence program with 25 out of 52 sessions remaining due to excessive absences from the program.
We review the record in a light most favorable to the judgment. (In re Michael G., supra,63 Cal.App.4th at p. 715.) The burden of proof is on the parent to show changed circumstances. (Matthew Z, supra,80 Cal.App.4th at p. 555.) Despite signs of improvement in her ability to maintain her sobriety, Terri did not comply with the drug testing component of the case plan. Terri had a history of resorting to physical altercation and her agitated behaviors were often seen as threatening. Jade was adversely affected by Tern's anger. Terri did not complete a domestic violence program. A court could reasonably conclude Terri did not show a change in circumstances sufficient to call into question the continuing validity of the ICWA detriment finding.
Even were we to assume Terri satisfactorily resolved the conditions on which Rochfort's December 2003 conclusions were based, substantial evidence supports the court's finding that continued parental custody presented a substantial risk of detriment to Jade's emotional well-being. (25 U.S.C. § 1912(f).) By July 2004 the effect of Terri's angry outbursts during visitation made Jade anxious and afraid. Jade reported physical ailments before and after visitation. She asked that visitation stop and insisted on testifying against her mother in court. In November 2004 Jade refused to participate in a court-ordered bonding study with Terri. In February 2005 she told the social worker Terri scared her. In March 2005 Jade testified she was mad at her mother and did not want to see her. The court's findings that visitation with Terri was emotionally detrimental to Jade are fully supported by the record.
Terri realized that Jade's immediate return to her custody was not possible. In her section 388 petition, Terri requested an additional period of reunification *Page 952 services and visitation. Thus, she implicitly conceded the current parent-child relationship was detrimental to Jade.
Furthermore, Indian child welfare social worker Banegas reviewed the case record and spoke with Jade's therapist and the Agency's Indian unit shortly before the permanency hearing. Banegas contacted the tribal office approximately three months before the hearing. At the referral hearing, the Indian social services agency, SIHC, recommended guardianship for Jade.
We conclude the ICWA detriment finding was not stale. Terri's relationship with Jade deteriorated during the period of time between the referral hearing and the permanency hearing. An Indian child welfare expert recently reviewed the case record, obtained current information concerning Jade and did not change the earlier recommendation for permanent out-of-home placement. The record supports the court's finding beyond a reasonable doubt that continued parental custody presented a substantial risk of detriment to Jade's safety, protection, or physical or emotional well-being. (25 U.S.C. § 1912(f).) Error, if any, was harmless.
II Terri contends that, due to the siblings' divergent interests, minors' counsel was subject to conflict and provided Jade with ineffective assistance by not investigating and protecting her tribal benefits. Terri asserts she has standing to raise the issue of ineffective assistance of minors' counsel because counsel's deficient performance impacted her interest in maintaining her parental rights.
The Agency asserts Terri forfeited this issue by not raising it at trial. However, our review of the record shows that Terri told the court that minors' counsel was "in a conflicting position." Terri opposed any action that would result in Jade's loss of tribal benefits and expressed concern that Jade's interests in her "Indian rights and benefits" were not being protected. The issue is not forfeited on appeal.
The Agency challenges Terri's standing to appeal this issue. Generally, a parent who is an aggrieved party may appeal a judgment in a juvenile dependency matter. (In re FrankL. (2000) 81 Cal.App.4th 700, 703 [97 Cal.Rptr.2d 88].) To be aggrieved, a party must have a legally cognizable interest that is injuriously affected by the court's decision. (Inre Carissa G. (1999) 76 Cal.App.4th 731, 734 [90 Cal.Rptr.2d 561].) We liberally construe the issue of standing and resolve doubts in favor of the right to appeal. (AjidaTechnologies, Inc. v. Roos Instruments, Inc. (2001)87 Cal.App.4th 534, 540 [104 Cal.Rptr.2d 686].) *Page 953
Here, action taken to protect or pursue the interests and rights of the child under rule 1438(g) may include the filing of a section 388 petition seeking reconsideration of an order setting a section 366.26 hearing on the basis of new evidence or changed circumstances. (Rule 1438(g)(1), (3); see §§ 385, 388.) Such action has the potential to alter the determination of the child's best interests and recommended permanency plan, affecting a parent's interest in his or her legal status with respect to the child. (See In re L.Y.L., supra,101 Cal.App.4th 942, 950-951.) We conclude Terri has standing to raise this issue on appeal.
Under section 317, subdivision (c), the primary responsibility of minor's counsel is to advocate for the protection, safety, and physical and emotional well-being of the child. Minor's counsel is also charged with the duty to "investigate the interests of the child beyond the scope of the juvenile proceeding and report to the court other interests of the child that may need to be protected by the institution of other administrative or judicial proceedings." (§ 317, subd. (e); see rule 1438(g)(2); In re Josiah Z. (2005)36 Cal.4th 664, 683 [31 Cal.Rptr.3d 472, 115 P.3d 1133] ["`It is the duty of the guardian and the attorney to protect the rights of the minor. . . .'"].)
The court should initially appoint a single attorney to represent all siblings in a dependency case unless there is an actual conflict of interest or a reasonable likelihood that an actual conflict of interest would develop. (In re CelineR. (2003) 31 Cal.4th 45, 58 [1 Cal.Rptr.3d 432,71 P.3d 787].) After the initial appointment, the court should relieve an attorney from representing multiple siblings only if an actual conflict of interest arises during the proceedings. (Ibid.) According to the Advisory Committee comment to rule 1438, "Attorneys have a duty to use their best judgment in analyzing whether, under the particular facts of the case, it is necessary to decline appointment or request withdrawal from appointment due to a purported conflict of interest." (Advisory Com. com., reprinted at 23 pt. 3, West's Ann. Codes, Rules (2006 supp.) foil, rule 1438, p. 40.)
In this case, there is no basis to allege a conflict of interest on the part of the minors' counsel. Jade and Kelsy did not have adverse interests. (See § 366.26, subd. (c)(1)(E); In reCeline R., supra, 31 Cal.4th at p. 57.) A conflict arises where minor's counsel seeks a course of action for one child with adverse consequences to the other. Here, no such conflict existed. Grandparents were committed to adopting both children. By the time the permanency hearing was concluded, they had been the children's caretakers almost two-and-a-half-years. Three-year-old Kelsy knew no other home. Jade was deeply emotionally invested in being adopted by Grandparents. Jade and Kelsy were attached to each other. The social worker opined they would be "lost without each other." The permanency of adoption would ensure the *Page 954 children would be raised together and the sibling relationship would remain intact. Thus, we conclude the children's interests were not adversarial and minors' counsel was not subject to conflict.
In addition, there is no basis to conclude that minors' counsel provided Jade with ineffective assistance of counsel. There is no doubt minors' counsel performed his duties under section 317, subdivision (c) zealously and effectively. After proper investigation, minors' counsel determined adoption by Grandparents was in Jade's best interests. Jade clearly expressed her desire to be adopted by Grandparents. They had become her surrogate parents. Grandparents were her sister's prospective adoptive parents. Minors' counsel concluded that any consideration of financial benefits was not relevant to a determination whether Jade was adoptable and whether any defined statutory exceptions precluded termination of parental rights. (See § 366.26, subd. (c)(1).)
We review the record in a light most favorable to the judgment and uphold the trial court's finding unless it can be said that no rational factfinder could reach the same conclusion. (Inre Michael G., supra, 63 Cal.App.4th at pp. 715-716.) On this record, we infer that minors' counsel properly performed his official duty under section 317, subdivision (e) to investigate other interests of the child beyond the scope of the juvenile proceeding. (See Evid. Code, § 664.) Minors' counsel told die court, "When we get into the issue of money, . . . we open Pandora's Box at this point because we know none of the evidence is going to show there is an absolute regard to money. Everything from this point in Jade's life is speculative." We conclude minors' counsel acted within his statutory obligations when he determined Jade's interests in tribal membership did not require protection. Therefore, he was not required to report those interests to the court. (See § 317, subd. (e); rule 1438(g)(2).)
Even had counsel notified the court of Jade's interest in tribal benefits, the court may have reasonably determined further action on behalf of the child was not required. (See rule 1438(g)(3).) Terri asserted adoption would divest Jade of tribal benefits; however, neither she nor any other party presented evidence the tribe would disenroll Jade were she adopted. The tribe opposed adoption but did not seek to intervene in the proceedings. Although the tribal chairman could answer questions regarding Jade's tribal membership, he did not return telephone calls from either the Agency social worker or the SIHC Indian child welfare expert.
The court's obligation to protect Jade's rights to tribal benefits was made more tenuous by the deference due the tribe as a sovereign nation. State courts have no power to intervene in tribal matters. (Lamere v. Superior Court (2005)131 Cal.App.4th 1059, 1061, 1068 [31 Cal.Rptr.3d 880].) Each tribe *Page 955 has the right to define its own membership for tribal purposes. (Santa Clara Pueblo v. Martinez (1978)436 U.S. 49, 72, fn. 32 [56 L.Ed.2d 106, 98 S.Ct. 1670]; see rule 1439(g)(1).) A tribe may change its membership ordinances at any time. (See Lamere, supra, at pp. 1061, 1063.) Thus, Jade's interest in future tribal benefits, if any, is not enforceable by state courts.
The Agency and minor's appellate counsel also point out that were termination of parental rights to result in the loss of Jade's interests in and rights to tribal benefits, there is no statutory mechanism that permits the court to consider those interests when it selects the child's permanency plan under section 366.26. (In re Carl R. (2005)128 Cal.App.4th 1051, 1069-1071 [27 Cal.Rptr.3d 612].) There is no general best interest exception to termination of parental rights under section 366.26. "[T]he court must consider the best interests of the child only in the context of whether one of the exceptions in section 366.26, subdivision (c)(1)(A) through (E) applies." (In re Carl R., supra, at p. 1070.)
We can find no exception that would preclude termination of parental rights in this case. Jade did not have a beneficial relationship with either parent,7 she was not yet 12 years old (and did not object to termination of parental rights),8 she was not in a residential treatment facility,9 she was living with extended family members who were willing to adopt her10 and there would be no substantial interference with the sibling relationship in the event the court terminated parental rights.11 Error, if any, was harmless.
Based on their assessment of Jade's needs and desires, Grandparents decided that adoption was in Jade's best interests. Grandparents made this decision knowing they would assume financial responsibility for her care and education. The social worker assumed adoption meant the loss of Jade's tribal *Page 956 benefits and determined Jade's interests in the emotional security and permanency of adoption outweighed any loss of financial interests. Each reached this conclusion only after repeated evaluation of Jade's circumstances, including consideration of her expressed wishes. (See § 366.26, subd. (h)(1).) Minors' counsel conducted an independent investigation and concluded Jade's financial interests were not certain and, in any event, were not relevant to a permanency hearing.
After carefully considering the evidence and legal arguments, the court found Jade's best interests were met by adoption. The trial court's findings will be upheld unless it can be said that no rational factfinder could reach the same conclusion. (Inre Michael G., supra, 63 Cal.App.4th at pp. 715-716.) We cannot substitute our view of the significance of tribal financial benefits, if any, for the sound judgment of the court.
DISPOSITION The judgments are affirmed.
McDonald, J., concurred.