Del Norte Cnty. Dep't of Health & Human Servs. v. Dylan N. (In re H.R.)

208 Cal.App.4th 751

145 Cal.Rptr.3d 782

12 Cal. Daily Op. Serv. 9556

2012 Daily Journal D.A.R. 11,585

In re H.R., a Person Coming Under the Juvenile Court Law.Del Norte County Department of Health and Human Services, Plaintiff and Respondent,

v. Dylan N. et al., Defendants and Respondents;Yurok Tribe, Intervener and Appellant.

No. A134137.

Court of Appeal, First District, Division 3, California.

Aug. 20, 2012.

See 10 Witkin, Summary of Cal. Law (10th ed. 2005) Parent and Child, § 688A.

Gretchen Stuhr, for plaintiff and respondent.

No appearance, for defendants and respondents.

Charles N. Henry, for intervener and appellant.

POLLAK, J.

In 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. In this case, the Yurok Tribe (the tribe) intervened in the dependency proceedings prior to the jurisdictional hearing and recommended tribal customary adoption as the permanent plan for the minor. The tribe now contends the juvenile court erred in terminating parental rights and selecting traditional adoption as the permanent plan. We disagree with the tribe's contention that the court was required to select tribal customary adoption as the child's permanent plan simply because the tribe elected such a plan but conclude that, in the absence of a finding that tribal customary adoption would be detrimental to the minor, the court erred in failing to select such a permanent plan in this case.

Factual and Procedural Background

On June 17, 2010, the Del Norte County Department of Health and Human Services (the department) filed a petition alleging that the minor came within the jurisdiction of the juvenile court under Welfare and Institutions Code section 300¹ based on his parents' history of chronic substance abuse. On June 25, 2010, the tribe determined that the minor was eligible for enrollment in the tribe because his father is an enrolled tribe member and moved to intervene in the proceedings under the Indian Child Welfare Act ( 25 U.S.C. § 1901 et seq.). The tribe was granted intervener status the same day. In July 2010 the court sustained the allegations in the petition. At the disposition hearing, the minor was declared a dependent of the court and by December 2010 he was placed with his paternal grandmother.

Following an unsuccessful attempt at family reunification, a permanency planning hearing was scheduled for October 2011. In advance of the hearing, the department filed a report recommending termination of parental rights and the selection of adoption as the minor's permanent plan. The report explained that the tribe “has traditionally been opposed to adoption, for the reason that it terminates parental rights and could potentially disconnect a Native child from their culture. In order to reach a compromise, the tribe [proposed] the implementation of a new permanent option for [the minor]: tribal customary adoption.” Although the grandmother was initially willing to consider a tribal customary adoption, “ultimately she decided that it would not be in the best interest of her grandson to be adopted through [tribal customary adoption], and she would not be willing to go through with the process. [She] has stated that she does not feel the tribe has enough experience with this option and she does not want to commit herself to the tribe's fluctuating expectations.”

Attached to the report, as required by section 366.22, subdivision (c)(1), was an assessment from the California Department of Social Services (CDSS) recommending tribal customary adoption as the child's permanent plan. The assessment explains, the minor “is currently placed with his paternal grandmother who has expressed a desire to adopt him. The tribe has expressed a willingness to support a tribal customary adoption ... and the undersigned had been working with the tribe and the family to that end.... The grandmother ... recently indicated she is no longer willing to consider a tribal customary adoption. [CDSS] believes a tribal customary adoption is in [the minor's] best interest because it would allow him the permanency and stability that adoption would afford him while also honoring the cultural values of his tribe.” The tribe submitted a recommendation for legal guardianship with the grandmother. The tribe explained that it was recommending guardianship rather than tribal customary adoption “due to the foster parents' display of a lack of trust and commitment during the process to develop and follow a [tribal customary adoption] agreement.... In the future, the ... Tribe is willing to reconsider a [tribal customary adoption] when the foster parent is willing to agree to the [tribal customary adoption] cultural agreement.” Based on these submissions, a contested hearing was requested and scheduled for November 2011.

On November 17, 2011, the tribe withdrew its recommendation for guardianship and the parties appeared before the court with a tentative agreement for a tribal customary adoption. The hearing was continued until December 12, 2011, for “a continued 366.26 or receipt of an approved tribal customary adoption order” (the order). On December 9, the tribe filed the order which approved an attached tribal customary adoption agreement (the agreement) signed by the tribe, the grandparents and their attorneys.

Under the agreement, the grandparents and the tribe agreed as follows: “1. The birth parents' parental rights shall not be terminated. All rights and responsibilities for the minor child rest with the adoptive parents, the child's birth parents do not retain any rights or responsibilities, or have any obligations toward the child. [¶] 2. Contact between the birth parents and the child, and the child's extended family members and the child, shall be at the sole discretion of the adoptive parents. [¶] 3. The child is an enrolled member of the ... Tribe, and retains all rights as a Yurok tribal member. [¶] 4. The child retains all inheritance rights as an enrolled member of the ... tribe. [¶] 5. By signing this agreement, all parties agree that the tribal customary adoption is a permanent adoptive placement for the child. All parties waive their right to request modification of the permanent adoptive placement of the child with the adoptive parents. [¶] 6. All rights not specified herein shall remain with the adoptive parents. [¶] 7. The adoptive parents agree to give [the minor] the opportunities available to him to enrich in the Native American culture. [The minor] will be provided the opportunity to visit the Yurok ancestral territory and Yurok community, as long as the adoptive parents see it as an appropriate and healthy environment for [the minor] to develop his identity as a Yurok person.”

The order entered by the tribe finds, among other things, that children “deserve to have knowledge about their unique cultural heritage including their tribal customs, history, language, religion, values and political systems” and orders that “all parties make a good faith effort to continually foster and increase the minor's knowledge of and participation in the unique Yurok cultural heritage.” The order finds further that “the minor will benefit from a relationship with his biological parents and extended family and ... that a good faith effort toward contact and visitation with the minor's entire extended family is in the minor's best interests and orders that all parties continually make such good faith efforts to foster visitation.”

At the December 12 hearing, the grandparents withdrew their consent to the agreement. They complained the order entered by the tribe went beyond the scope of the agreement they signed and that they believed that it gave the tribe too much control over the child's life. The grandfather explained, “My concern is that ... his birth parents ... have both been in custody due to ... drug violations and [their] extended family has as well. I don't think we should be compelled to take [the minor] to visit with these people.” He was also concerned that because tribal customary adoption is a new form of adoption, in the future “there's a possibility that the tribe may lend itself in a more direct manner into our relationship with [the minor].” Finally, he testified that he and the grandmother respected the minor's tribal heritage and would encourage him to spend time with his extended family and support him should he choose to participate in tribal activities, but that they “just want him to grow up in a normal, ordinary ... family without having this order hanging over [their] heads.” The grandmother also expressed concerns about how potential disputes between the grandparents and the tribe would be resolved should the tribe come to believe that they were not making good faith efforts as required by the order. Both grandparents testified that while they would prefer an adoption under state law with termination of parental rights, they would proceed with the adoption nonetheless should the court select tribal customary adoption as the child's permanent plan.

After hearing testimony from numerous witnesses, including the social worker and an expert on the tribe, the court selected traditional state law adoption as the permanent plan and terminated parental rights. The court opined that there would be no meaningful difference for the minor under either form of adoption and concluded that under these circumstances the statute compelled the court to order traditional adoption and terminate parental rights. The court observed that “If I choose regular California state law adoption or tribal customary adoption, my guess is that going...