This case involves the placement preferences set forth in the Indian Child Welfare Act of 1978 (ICWA) (25 U.S.C. § 1901 et seq.).
A 17-month-old Indian child was removed from the custody of her mother, who has a lengthy substance abuse problem and has lost custody of at least six other children, and her father, who has an extensive criminal history and has lost custody of one other child. The girl's father is an enrolled member of an Indian tribe, and the girl is considered an Indian child under the ICWA. The tribe consented to the girl's placement with a non-Indian foster family to facilitate efforts to reunify the girl with her father. The girl lived in two foster homes before she was placed with de facto parents at the age of two. She bonded with the family and has thrived for the past two and a half years.
After reunification efforts failed, the father, the tribe, and the Los Angeles County Department of Children and Family Services (Department) recommended that the girl be placed in Utah with a non-Indian couple who are extended family of the father. The de facto parents (de facto parents) argued good cause existed to depart from the ICWA's adoptive placement preferences and it was in the girl's best interests to remain with the de facto family.
De facto parents appeal from the placement order, raising constitutional challenges to the ICWA, which we hold they lack standing to assert. De facto parents also contend that the ICWA's adoptive placement preferences do not apply when the tribe has consented to a child's placement outside of the ICWA's foster care placement preferences. We disagree with their interpretation of the statutory language. De facto parents further contend the court erroneously applied the clear and convincing standard of proof, rather than preponderance of the evidence, a contention we reject based upon the overwhelming authority on the issue. Finally, de facto parents contend the court erroneously interpreted the good cause exception to the ICWA's adoptive placement preferences as requiring proof of a certainty that the child would suffer emotional harm if placed with the Utah couple, and failed to consider the bond between Alexandria P. and her foster family, the risk of detriment if that bond was broken, and Alexandria's best interests. We agree with this last contention and reverse the placement order because the court's error was prejudicial.
For clarity, we set forth the parties before turning to the facts and procedural history. The Indian child's name is Alexandria. De facto parents, Russell and Summer P., are appellants seeking to reverse the placement order. The P.s are supported by amici curiae Joan Hollinger, Northern California Association of Counsel for Children, and Advokids, which filed a joint brief in support of reversal. Alexandria argues we should affirm the order directing her preadoptive placement with Ginger and Ken R., her extended family in Utah. Alexandria's father, the Department, and the Choctaw Nation of Oklahoma (tribe) have all filed briefs in support of affirmance as well.
Alexandria's Family Background
Alexandria's mother is not Indian, has a history of substance abuse, including methamphetamine abuse, and lost custody of at least six other children before Alexandria was born. Alexandria's father (father), an enrolled member of the tribe,
Alexandria's Child Welfare History
Alexandria was detained from her parents and placed with a foster family when she was 17 months old, based on concerns about her parents' ability to care for her in light of their histories of substance abuse, child welfare referrals, and criminal activity. Alexandria reportedly was moved to a different foster family after suffering a black eye and a scrape on the side of her face.
By the time Alexandria was placed with the P.s in December 2011, her extended family in Utah, the R.s, were aware of dependency proceedings and had spoken to representatives of the tribe about their interest in adopting Alexandria. The tribe agreed to initial foster placement with the P.s because it was close to father at a time when he was working on reunification. If reunification services were terminated, the tribe recommended placement with the R.s in Utah.
Alexandria's Emotional Health
Alexandria's first months after being placed with the P.s were difficult. She was weepy at times, did not want to be held, and had difficulty differentiating between strangers and caregivers, indiscriminately calling people "mommy" or "daddy." These behaviors were considered signs of a "reactive attachment, the disinhibitive type." The P.s addressed Alexandria's attachment issues with consistency and loving care. They did not ask the social worker for a therapy referral, understanding the issues to be ones they could work out on their own. After a few months, Alexandria's behavioral issues resolved, and she formed a strong primary bond and attachment with the entire P. family, viewing the parents as her own parents and the P. children as her siblings.
An April 3, 2013 report notes the significant advancements made by Alexandria during her placement with the P.s, as well as her ability to form a healthy attachment to new caretakers: "Alexandria's ability to re-attach to a new caretaker is stronger because of the stability that the [P.] family has provided for her. The behaviors that she presented with initially when placed with the [P.] family were much more indicative of a possible attachment disorder (i.e., the indiscriminate attachment she demonstrated with strangers). Since then, these behaviors have been almost entirely extinguished. In their place are more appropriate behaviors that are evidence of a more healthy and secure attachment ...."
Father's Reunification Efforts
Father successfully complied with reunification services for more than six months, progressing to such an extent that he was granted unmonitored eight-hour visits. By June 2012, the Department reported a substantial probability he would reunify with Alexandria within the next six months. Shortly thereafter, however, father's emotional state deteriorated dramatically. He separated from his new wife, left California, and did not visit Alexandria after July 28, 2012. By September 2012, he had communicated to the Department that he no longer wished to continue reunification services.
The R. Family
Because Ginger R.'s uncle is Alexandria's paternal stepgrandfather, the tribe recognizes the R.s as Alexandria's extended family. The R.s have an ongoing relationship with Alexandria's half sister, Anna, who visits the R.s on holidays and for a week or two during the summer. Anna and Alexandria have the same paternal grandmother (who has since passed away) and
The R.s expressed their interest in adopting Alexandria as early as October 2011. They were initially told that to avoid confusing Alexandria, they should not contact her while father attempted to reunify. If reunification efforts failed, they were the tribe's first choice for adoption. The family has approval for Alexandria to be placed with them under the Interstate Compact on the Placement of Children (ICPC; Fam. Code, § 7900 et seq.). The R.s first visited Alexandria shortly after the court terminated father's reunification services. Since then, they video chat with Alexandria about twice a week and have had multiple in-person visits in Los Angeles. The P.s refer to the R.s as family from Utah. At one point, when Alexandria asked if she was going to Utah, the P.s responded that they did not know for sure, but it was possible. Russell and Summer P. testified that before and following a recent visit by the R.s, most likely in June 2013, Alexandria was upset and said she did not want to visit with the R.s and did not like it when they came to visit. Russell P. acknowledged that the change in Alexandria's feelings coincided with the birth of a new baby in the P. family and a transition to a new therapist for Alexandria.
The P. Family
Alexandria has lived with the P.s for over two and a half years, beginning in December 2011. By all accounts, they have provided her with clear and consistent rules, and a loving environment. Alexandria is bonded to the P.s, and has a healthy attachment to them. The Department consistently reminded the P.s that Alexandria is an Indian child subject to the ICWA placement preferences. At some point after father's reunification efforts failed, the P.s decided they wanted to adopt Alexandria. They discussed the issue with the Department social worker, who advised them that the tribe had selected the R.s as the planned adoptive placement.
As ordered by the court on April 12, 2013, the Department arranged a conference call to discuss a transition plan in anticipation of a possible court order directing placement with the R.s. The call lasted 90 minutes and included the P.s in Los Angeles; the R.s from Utah; Ruth Polcino, Alexandria's therapist at United American Indian Involvement; Polcino's supervisor, Jennifer Lingenfelter; Alexandria's attorney, Kerri Anderson; and Department social worker Roberta Javier, as well as two other Department employees. The participants agreed on a transition plan that involved a relatively short transition, with both families meeting for breakfast or at a
The Department filed a petition in this matter on April 25, 2011, alleging that Alexandria was at risk of physical harm due to her parents' history of substance abuse. The court appointed counsel for Alexandria and father, ordered reunification services for father, and later found father to be Alexandria's biological father based on DNA test results.
On August 30, 2011, the court found that the ICWA applies and the matter was transferred to a specialized department for ICWA cases, with Commissioner Sheri Sobel presiding. On November 3, 2011, the Department filed a last-minute information attaching the tribe's notice of intervention, which the court acknowledged and filed the same day. A later last-minute information filed by the Department attached a declaration of a tribal social worker acknowledging that the ICWA requirements for Alexandria's removal from parental custody had been met.
On December 22, 2011, the court conducted adjudication and disposition hearings, sustaining allegations under subdivision (b) of Welfare and Institutions Code section 300 and removing Alexandria from parental custody. The court ordered reunification services for father, but denied services for the mother. The court granted father monitored visits at least three times a week after he was released from custody. At a progress hearing on March 22, 2012, the court granted the Department discretion to allow father unmonitored daytime visits with Alexandria. On June 21, 2012, the Department filed a report describing father's substantial compliance with reunification services and the likelihood that father would be able to reunify with Alexandria. The same day, the court ordered play therapy for Alexandria. On August 17, 2012, the court granted the Department's petition to change court order, reinstating the requirement that father's visits be supervised.
On October 4, 2012, the court terminated father's reunification services and scheduled a hearing for termination of parental rights under Welfare and
On January 17, 2013, while the ICPC request was still in process, Alexandria's guardian ad litem and court-appointed attorney requested a "Do Not Remove" order to prevent Alexandria from being moved out of state without a court order. Commissioner Sobel granted the request on January 18, 2013. Other than two continuances granted in April 2013, all later proceedings were held before Judge Amy Pellman.
Over the next six months, the court granted de facto parent status to the P.s, the ICPC request permitting Alexandria's placement with the R.s in Utah was approved, Alexandria's attorney withdrew her objection to Alexandria's change in placement,
On July 29, 2013, the court commenced a hearing that spanned five days over the course of three months to determine whether good cause existed to permit Alexandria to remain with the P.s, rather than placing her with the R.s in Utah in accordance with the ICWA's adoptive placement preferences. The court heard testimony from (1) Roberta Javier, the social worker for the Department who was assigned to the case in December 2011, around the same time Alexandria was placed with the P.s; (2) Jennifer Lingenfelter, clinical director at United American Indian Involvement, where she supervised Alexandria's first therapist, Ruth Polcino, until Polcino went on maternity leave; (3) Russell P., Alexandria's foster father; (4) Summer P., Alexandria's foster mother; (5) Ginger R., Alexandria's extended family member and proposed adoptive mother; (6) Genevieve Marquez, Alexandria's current therapist at United American Indian Involvement; (7) Amanda Robinson, a tribal social worker; (8) Lauren Axline, a foster adoption case manager at the foster agency that placed Alexandria with the P.s; and (9) Billy Stevens, a tribal elder.
The social workers and therapists who testified all agreed that Alexandria has a primary attachment and a strong bond with the P.s. She considers Russell and Summer P. her parents and the P. children her siblings. Regarding Alexandria's ability to attach with a new caregiver if her bond with the P.s is broken, Javier and Lingenfelter acknowledged that a change in placement would be potentially traumatic, but that the existence of a primary bond and healthy attachment increases the likelihood that a child will successfully
On December 9, 2013, the court issued a written statement of decision, summarized below. It also granted a seven-day stay, during which the P.s filed a petition for writ of supersedeas, which this court granted, directing that Alexandria would stay with the P.s until this court decided the P.s' appeal of the court's December 9, 2013 order.
THE DEPENDENCY COURT'S DECISION
The court issued its written statement of decision on December 9, 2013, finding the P.s had not demonstrated good cause to depart from the placement preferences and ordering a gradual transition for Alexandria to move from the P.s' home to the R.s' home. In its decision, the court reviewed the law governing the ICWA's placement preferences and concluded that the R.s were extended family entitled to preference under section 1915(a) and Welfare and Institutions Code section 361.31, subdivision (h) unless the P.s demonstrated good cause to depart from that preference. The court's analysis focused primarily on "whether the significant bonding between the [P.s] and Alexandria constitute[s] good cause to deviate from the placement preferences." It perceived a conflict in California appellate law on whether a court could consider the bonding that had occurred between Alexandria and the P.s as part of its good cause analysis. (In re A.A. (2008) 167 Cal.App.4th 1292 [84 Cal.Rptr.3d 841] (A.A.) [affirming good cause finding based on expert testimony that minors suffered from reactive attachment disorder and changing placement would be detrimental]; cf. In re Desiree F. (2000) 83 Cal.App.4th 460 [99 Cal.Rptr.2d 688] (Desiree F.) [finding the ICWA notice violation and instructing the trial court to not consider the bonding between the child and current foster family and the trauma that may result from a change in placement in determining whether good cause exists to deviate from the ICWA's placement preferences].)
The court distinguished Alexandria's situation from the facts under consideration in A.A., C.H., and Interest of C.W., noting that "[t]he expert testimony in this case did not reach to the level of certainty that Alexandria would suffer extreme detriment from another move." The court's decision included excerpts from two articles about the effect of changes in placement on children's brains,
Ultimately, the court concluded that the P.s "were unable to meet their burden by clear and convincing evidence, that either the child currently had extreme psychological or emotional problems or would definitively have them in the future. Without that evidence, supported by experts, there is insufficient evidence to warrant a deviation from the placement preference. [Citations.] The evidence is uncontroverted that Alexandria is extremely
We first consider whether the adoptive placement preferences set forth in section 1915(a), and Welfare and Institutions Code section 361.31, subdivision (c), apply to Alexandria. The P.s are the only party challenging application of the placement preferences, and we conclude they lack standing to raise constitutional arguments against the ICWA's application because they do not have a constitutionally protected interest in a continued relationship with Alexandria. Even if the P.s had standing to raise their constitutional arguments, we are not persuaded they are correct on the merits. The existing Indian family doctrine applied by Division Two of this court in In re Santos Y. (2001) 92 Cal.App.4th 1274 [112 Cal.Rptr.2d 692] (Santos Y.) might permit us to conclude that the ICWA does not apply in this case, but the doctrine has been called into question by other appellate courts in this state, as well as by the courts of other states. The United States Supreme Court's recent opinion in Adoptive Couple v. Baby Girl (2013) 570 U.S. ___, ___ [186 L.Ed.2d 729, 133 S.Ct. 2552] (Adoptive Couple) also does not compel a different conclusion. Next, we reject the contentions made the P.s and by amici curiae that section 1915(a)'s adoptive placement preferences do not apply because Alexandria had already been placed in foster care with de facto parents with the knowledge and consent of the tribe.
Concluding that the ICWA's adoptive placement preferences do apply to this case, we then review the trial court's order finding that the P.s failed to produce clear and convincing evidence of good cause to depart from those placement preferences. We determine that the court applied the correct burden of proof by requiring the P.s to prove by clear and convincing evidence that there was good cause to deviate from section 1915's placement preferences. However, the court erroneously required the P.s to prove a certainty that Alexandria would suffer harm if moved, and failed to consider Alexandria's best interests or her bond with the P.s in determining good cause.
The ICWA Background Information
Because numerous state and federal cases already review the legislative history and purpose of the ICWA and California's statutory enactments pertaining to Indian child welfare law (see, e.g., Adoptive Couple, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2557]; Mississippi Choctaw Indian v. Holyfield (1989) 490 U.S. 30, 32 [104 L.Ed.2d 29, 109 S.Ct. 1597]
One year after the enactment of the ICWA, the Bureau enacted guidelines concerning the implementation of the ICWA. (Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67584 (Nov. 26, 1979) (Guidelines).) According to the Guidelines, "The Indian Child Welfare Act, the federal regulations implementing the Act, the recommended guidelines and any state statutes, regulations or rules promulgated to implement the Act shall be liberally construed in favor of a result that is consistent with these preferences. Any ambiguities in any of such statutes, regulations, rules or
Responding to inconsistent and sporadic application of the ICWA's requirements by California courts, the California Legislature enacted Senate Bill No. 678 (2005-2006 Reg. Sess.) (Senate Bill 678) in 2006. Senate Bill 678 incorporated the ICWA's requirements into California statutory law, revising several provisions of the Family, Probate, and Welfare and Institutions Codes. (See Autumn K., supra, 221 Cal.App.4th at pp. 703-704.) According to the Senate Rules Committee, Senate Bill 678 "affirms the state's interest in protecting Indian children and the child's interest in having tribal membership and a connection to the tribal community." (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of Sen. Bill No. 678 (2005-2006 Reg. Sess.) as amended Aug. 22, 2005, p. 1.) Similar to the ICWA, Senate Bill 678 contains a section of express legislative findings, including findings that "[i]t is in the interest of an Indian child that the child's membership in the child's Indian tribe and connection to the tribal community be encouraged and protected, regardless of whether the child is in the physical custody of an Indian parent or Indian custodian at the commencement of a child custody proceeding, the parental rights of the child's parents have been terminated, or where the child has resided or been domiciled." (Welf. & Inst. Code, § 224, subd. (a)(2).) The statute directs the court to "strive to promote the stability and security of Indian tribes and families, comply with the federal Indian Child Welfare Act, and seek to protect the best interest of the child. Whenever an Indian child is removed from a foster care home or institution, guardianship, or adoptive placement for the purpose of further foster care, guardianship, or adoptive placement, placement of the child shall be in accordance with the Indian Child Welfare Act." (Id., § 224, subd. (b).) In addition, a determination that a minor is "eligible for membership in an Indian tribe and a biological child of a member of an Indian tribe shall constitute a significant political affiliation with the tribe and shall require the application of the federal Indian Child Welfare Act to the proceedings." (Id., § 224, subd. (c).)
"In certain respects, California's Indian child custody framework sets forth greater protections for Indian children, their tribes and parents than ICWA. [Citations.]" (In re Jack C. (2011) 192 Cal.App.4th 967, 977 [122 Cal.Rptr.3d 6].) Both federal and state law expressly provide that if a state or federal law provides a higher level of protection to the rights to the parent or Indian guardian of an Indian child, the higher standard shall prevail. (§ 1921; Welf. & Inst. Code, § 224, subd. (d) [also applying the higher standard of protection to the rights of the child].)
De Facto Parents' Challenge to the ICWA's Constitutionality
The P.s make three separate arguments challenging the constitutionality of the ICWA's application in this case.
A. The P.s' Standing to Raise Constitutional Challenge
"Although standing to appeal is construed liberally, and doubts are resolved in its favor, only a person aggrieved by a decision may appeal.
The P.s claim there is a constitutionally protected interest in the foster family relationship. Relying on Smith v. Organization of Foster Families (1977) 431 U.S. 816, 843-847 [53 L.Ed.2d 14, 97 S.Ct. 2094] (Smith), the P.s argue that they and Alexandria, considered as a unit, are a de facto family
Our decision in Vincent M., supra, 161 Cal.App.4th 943, recognizing that de facto parents may have standing to appeal orders that impact their right to a continued relationship with a foster child, does not require a different result. In Vincent M., the minor was placed with the de facto parents when he was only four days old, and the case was immediately put on the adoption track. The biological father appeared for the first time in the action eight months later, filing a petition under Welfare and Institutions Code section 388 seeking reunification services. We held that the de facto parents had a legally cognizable interest in the planned adoption and a right to appeal an order that took the case off the adoption track. (161 Cal.App.4th at p. 953.) The foster parents in Vincent M. were aggrieved by the order they were appealing, but they made no constitutional challenge to the trial court's order on behalf of the minor. Here, the P.s acknowledge Alexandria's placement with them was not an adoptive placement and they were consistently made aware that the ICWA's placement preferences were applicable. They knew at all times the
B. Constitutional Arguments
Even if we were to conclude the P.s had standing to challenge the ICWA's constitutionality, we find their arguments unpersuasive. The P.s' constitutional arguments emphasize that Alexandria's connection to the tribe is solely biological, and that father did not have physical or legal custody of Alexandria before the dependency case was filed. We reject the P.s' attempt to apply the existing Indian family doctrine to this case, and to expand the limited holding of the United States Supreme Court in Adoptive Couple, supra, 570 U.S. ___ [133 S.Ct. 2552], well beyond its intended scope. We also reject the argument that Congress acted outside of its enumerated powers in enacting the ICWA.
1. The continued viability of the existing Indian family doctrine is questionable, and it is inapplicable to this case
In California, there is a split in the appellate districts, and the continued viability of the doctrine is far from settled. Four of California's six appellate districts have rejected the doctrine. Most recently, the First Appellate District declared "[t]here is no question that the existing Indian family doctrine is not viable in California." (Autumn K., supra, 221 Cal.App.4th at p. 716.) The Sixth Appellate District rejected the doctrine in In re Vincent M. (2007) 150 Cal.App.4th 1247, 1265 [59 Cal.Rptr.3d 321], turning away from its earlier application of the doctrine in Crystal R. v. Superior Court (1997) 59 Cal.App.4th 703, 718-724 [69 Cal.Rptr.2d 414] (Crystal R.), and explicitly rejecting this district's continued application of the doctrine in Santos Y., supra, 92 Cal.App.4th 1274. Also among those rejecting the doctrine are the Third Appellate District (Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 996 [48 Cal.Rptr.3d 605]) and the Fifth Appellate District (In re Alicia S. (1998) 65 Cal.App.4th 79 (Alicia S.)).
2. The United States Supreme Court's analysis in Adoptive Couple does not impact this case
The most recent United States Supreme Court case addressing the ICWA only receives tangential mention in the P.s' opening brief to support their argument that the ICWA cannot constitutionally apply to a case where an Indian father never had custody of the child. The reasoning of Adoptive Couple, supra, 570 U.S. at pages ___-___ [133 S.Ct. at pp. 2558-2559] has no impact on the case before us, because the facts of our case are entirely distinguishable.
Adoptive Couple involved an Indian father whose child was placed in a private adoption after he had voluntarily relinquished his parental rights. (Adoptive Couple, supra, 570 U.S. at pp. ___-___ [133 S.Ct. at pp. 2558-2559].) The Supreme Court addressed whether the ICWA precluded termination of the father's rights until the court found that "`active efforts have been made to provide remedial services and rehabilitative programs...'" to the father and that his continued custody of the minor would
Part IV of the United States Supreme Court's opinion does address the ICWA's placement preferences under section 1915, the provision at issue in our case. The court held that when no party entitled to placement preference under section 1915(a) has come forward to adopt an Indian child, the preferences identified under that section do not apply. (Adoptive Couple, supra, 570 U.S. at p. ___ [133 S.Ct. at p. 2564].) This holding does not apply to the case at hand because the R.s have been identified as prospective adoptive parents and are entitled to placement preference because they are considered extended family by the tribe. Nothing in the reasoning of Adoptive Couple leads us to conclude otherwise.
3. We need not examine the ICWA's facial constitutionality
Appellant's final attack on the ICWA's constitutionality rests on Justice Thomas's concurrence in Adoptive Couple. (Adoptive Couple, supra, 570 U.S. at pp. ___-___ [133 S.Ct. at pp. 2565-2571] (conc. opn. of Thomas, J.).) Justice Thomas characterizes the ICWA as facially unconstitutional because it falls outside Congress's powers to "regulate Commerce ... with the Indian Tribes." (U.S. Const., art. I, § 8, cl. 3.) This view was not adopted by any other member of the United States Supreme Court, and even if it had any
Asserted Agreement by the Tribe to Alexandria's Adoptive Placement by Consenting to Her Foster Care Placement with the P.s
The P.s and amici curiae make a novel contention
This argument is unsupported by case law and, in fact, runs counter to the many published cases where a tribe or Indian parent initially consents to foster care placement that does not comply with the ICWA's placement preferences, and later asserts adoptive placement preferences, usually after reunification efforts have failed. (See, e.g., Santos Y., supra, 92 Cal.App.4th 1274 [tribe supported placement with foster parents for two years, until it found a suitable individual qualified as a preferred adoptive placement]; Native Village of Tununak v. State, Dept. of Health & Social Services, Office of Children's Services (Alaska 2013) 303 P.3d 431, 434 (Tununak) [parties stipulated to a foster placement that departed from the ICWA's placement preferences while a search for preferred placements continued].)
The good cause exception permits a court to depart from adoptive placement preferences. (See, e.g., Alicia S., supra, 65 Cal.App.4th at pp. 91-92 [removal from a foster home is not a foregone conclusion if the ICWA applies, because "good cause" exception may permit a different result].) However, we decline to conclude that mere consent to a foster care placement falling outside the preferences listed in section 1915(b) in order to facilitate reunification efforts precludes a court from ordering a later change in placement to comply with section 1915(a)'s adoptive placement preferences.
The Dependency Court's Decision on the Applicability of the Good Cause Exception to the ICWA's Placement Preferences
The trial court correctly required the P.s to demonstrate by clear and convincing evidence that there was good cause to depart from the ICWA's placement preferences. However, the court's application of the good cause exception to the facts before it was legally erroneous. Because the error was prejudicial to the P.s, we reverse and remand the matter for the court to conduct further proceedings necessary to apply the good cause exception in a manner consistent with this opinion.
A. The Clear and Convincing Standard of Proof Applies to Good Cause Determinations Under Section 1915 of the United States Code.
The P.s and amici curiae contend that the trial court applied an erroneous standard of proof when it concluded they failed to show good cause by clear and convincing evidence. According to the P.s, good cause need only be shown by a preponderance of the evidence because both the state and federal statutes are silent on the applicable standard of proof. (Evid. Code, § 115 "[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence"].) The Department and Alexandria both contend that the court correctly required the P.s to show clear and convincing evidence of good cause. Alexandria also contends the P.s forfeited the right to raise the issue on appeal by failing to object to the court's use of the clear and convincing standard of proof. Father and the tribe join in these arguments.
The ICWA's policy goal of promoting the stability and security of Indian tribes and families persuades us to join the growing number of state courts, including the Supreme Courts of Alaska and South Dakota, that apply the clear and convincing standard of proof to good cause determinations under
Just last year, the Alaska Supreme Court examined this precise issue, and we are persuaded by its well-reasoned decision that despite the lack of explicit statutory language, a court must find clear and convincing evidence of good cause before it may deviate from the ICWA's placement preferences. In Tununak, supra, 303 P.3d at pages 433-440, a four-month-old Indian girl was removed from her parents, who lived in Anchorage. The girl's maternal grandmother lived in a remote Alaskan town, and although she was available for placement, all parties agreed that immediate placement would hinder any efforts at reunification. Instead, the girl was placed with a non-Indian foster family in Anchorage to facilitate reunification efforts.
The tribe consented to the foster care placement. After the parents failed to reunify, the lower court found good cause by a preponderance of the evidence to deviate from a preferred placement, allowing the minor to remain with the foster family rather than placing her with the maternal grandmother for adoption. (Tununak, supra, 303 P.3d at pp. 433-440.) The Alaska Supreme Court in Tununak conducted an indepth examination of legislative history and cases from other jurisdictions, and also considered its own earlier decisions identifying preponderance of the evidence as the correct standard of proof for finding good cause, and reached the conclusion that its earlier decisions were erroneous and the correct standard of proof for the good cause exception was clear and convincing evidence. (Id. at pp. 446-449.) In light of the ICWA's policy "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families ..." the Tununak court
The Tununak court also pointed out that "[a] clear and convincing standard of proof for § 1915(a) good cause determinations is also more consistent with other provisions in ICWA demanding a heightened standard of proof." (Tununak, supra, 303 P.3d at p. 449; see ibid, [referring to §§ 1921 ("[i]n any case where State or Federal law applicable to a child custody proceeding ... provides a higher standard of protection to the rights of the parent or Indian custodian of an Indian child than the rights provided under this subchapter, the State or Federal court shall apply the State or Federal standard"), 1912(e) (requiring clear and convincing evidence that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child), 1912(f) (requiring evidence beyond a reasonable doubt before parental rights are terminated].)
B. The Dependency Court's Interpretation of the Good Cause Exception Was Legally Erroneous
When a party appeals a good cause determination, the appellate court usually applies a substantial evidence standard of review. (Fresno County, supra, 122 Cal.App.4th at pp. 644-646.) "Under this standard, we do not pass on the credibility of witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. Instead, we draw all reasonable inferences in support of the findings, view the record favorably to the juvenile court's order and affirm the order even if there is other evidence supporting a contrary finding. [Citations.] The appellant has the burden of showing there is no evidence of a sufficiently substantial nature to support the court's findings. [Citation.]" (In re G.L. (2009) 177 Cal.App.4th 683, 697-698 [99 Cal.Rptr.3d 356].) However, because the P.s challenge the lower court's interpretation of the term "good cause," they raise issues of statutory interpretation, which we review de novo. (Anthony T., supra, 208 Cal.App.4th at p. 1028.)
The court committed three legal errors in interpreting the meaning of the term "good cause" as an exception to the placement preferences identified in section 1915. First, it erred by requiring the P.s to show that Alexandria either "currently had extreme psychological or emotional problems or would definitively have them in the future" and reasoning that the "expert testimony in this case did not reach to the level of certainty that Alexandria would suffer extreme detriment from another move." Second, while not entirely clear from the court's statement of decision, the court may have erroneously declined to consider the bond between Alexandria and the P.s, and the detriment Alexandria might suffer from an order requiring a change in placement. Third, the court failed to consider Alexandria's best interests in deciding whether the good cause exception applied.
1. Certainty requirement
In determining what evidence is required to establish good cause, the court ruled that a moving party could only show good cause by expert testimony and evidence that the child "currently had extreme psychological or emotional problems, or would definitively have them in the future." This extreme standard is not based in California law, but instead is found in an opinion by the Montana Supreme Court, which reversed a lower court's finding of good cause to deviate from the ICWA's placement preferences. (C.H., supra, 997 P.2d 776.) In C.H., the lower court determined the child had likely suffered physical abuse and placed her with non-Indian foster parents at the age of three months. When the child was 15 months old, the lower court found good cause to deviate from the ICWA's placement preferences based in part on a finding that "as a result of [minor's] emotional bond with the [foster family] and the abuse she experienced early in life, she is at risk for developing an attachment disorder should she be removed ..." from her foster home. (997 P.2d at p. 781.) The Montana Supreme Court reversed, pointing to the lack of any testimony that the minor "was certain to develop an attachment disorder if removed from" the foster family's home. (Id. at p. 783, italics added.) The court went on to explain the certainty requirement by stating "[t]he risk that a child might develop such problems in the future is simply too nebulous and speculative a standard on which to determine that good cause exists to avoid the ICWA placement preferences. Indeed, it could be said that any child who has been abused, removed from its parents' care at a young age and placed in foster care might be at risk for developing emotional or psychological disorders. To allow such an indefinite standard to meet the good cause test for avoiding the preferences would essentially ignore the preferences set forth in § 1915(a) of the ICWA." (Ibid.)
Based on the cases discussed above, we conclude that the court incorrectly required the P.s to show a certainty that Alexandria would suffer harm if the court followed the placement preferences listed in section 1915(b). Instead, we hold that a court may find good cause when a party shows by clear and convincing evidence that there is a significant risk that a child will suffer serious harm as a result of a change in placement.
2. Bonding with foster family
The court erroneously relied on Desiree F., supra, 83 Cal.App.4th at page 476 and Halloway, supra, 732 P.2d 962 to conclude that "while the bonding with the [P.s] is significant to this court, it does not supersede the placement preference under the ICWA." It is impossible to determine from this language whether the court considered the bond between Alexandria and the P.s as a factor, or felt compelled by Desiree F. to ignore the bond in determining good cause. To the extent the court relied on Desiree F. to exclude the bond as a factor in the good cause determination, it did so erroneously because the facts of our case do not warrant such an exclusion. In Desiree F., the social services agency was responsible for the delay in notifying the tribe of the proceedings, and the appellate court clarified that on remand, the trial court could not consider factors flowing from the agency's "flagrant violation" of the ICWA, including any bond the minor developed with the current foster
The social workers and therapists who testified at trial all agreed that Alexandria had a strong bond with and a healthy attachment to the P.s. Testimony varied on nature of the trauma Alexandria would suffer upon the breaking of her bond with the P.s as her primary caregivers. Genevieve Marquez and Jennifer Lingenfelter, the therapist and supervisor at United American Indian Involvement, acknowledged that being removed from the P.s would cause some trauma to Alexandria, but that she was resilient and would overcome any trauma, particularly if she was able to maintain continued contact with the P.s and received therapeutic support after placement with the R.s. The Department social worker, Roberta Javier, acknowledged that the transition would be difficult for Alexandria, but that because she has a healthy attachment currently, and because she knows the R.s as family, she would be able to renegotiate a new bond that would be just as healthy. Lauren Axline, the social worker for the foster family agency, had the strongest views of the negative impact on Alexandria. It was Axline's belief that Alexandria would experience removal as the death of a parent or family "because she is being taken away from everything that is familiar to her, everything that she's known to be stability." Axline also felt that continued contact and therapeutic support would not lessen the trauma suffered by Alexandria.
3. Best interests
"`Good cause' often includes considerations affecting the best interests of the child, such as whether the child has had any significant contact with the tribe ... or the extent of the child's bonding with a prospective adoptive family. [Citations.]." (Crystal R., supra, 59 Cal.App.4th 703, 720, fn. omitted.) Although we are unaware of any published California case holding that a court must consider a child's best interests when determining good cause, such an approach is consistent with the law in many other states and with California's emphasis on best interests in dependency proceedings. (See, e.g., In re Lauren R. (2007) 148 Cal.App.4th 841, 855 [56 Cal.Rptr.3d 151] ["`the fundamental duty of the court is to assure the best interests of the child, whose bond with a foster parent may require that placement with a relative be rejected'"]; Tununak, supra, 303 P.3d at pp. 451-452 [good cause depends on many factors, including the child's best interests]; In Interest of A.E. (Iowa 1997) 572 N.W.2d 579, 585 [good cause depends on a fact determinative analysis consisting of many factors, including the best interests of the child]; In re Interest of Bird Head (1983) 213 Neb. 741 [331 N.W.2d 785, 791] ["[ICWA] does not change the cardinal rule that the best interests of the child are paramount, although it may alter its focus."]; but see S.E.G., supra, 521 N.W.2d at pp. 362-363 [holding that the good cause exception does not include the best interests of the child].) Based on the foregoing, we conclude the court erred in failing to consider whether, in light of the presumption that adherence to the placement preferences would usually be in a minor's best interests, Alexandria's best interests supported a finding of good cause.
C. The Dependency Court's Erroneous Interpretation of the Good Cause Exception Was Prejudicial
A full year has passed since the court began its good cause hearing in July 2013, and circumstances may have changed in the interim. For example, Alexandria may have had additional opportunities to bond more strongly with the R.s, reducing the risk of detriment or trauma. Alternatively, her bond with the P.s may have become even more primary and strong. Because we reverse and remand, we emphasize that in determining whether good cause exists to depart from the placement preferences identified in section 1915(a), the court may consider facts and circumstances that have arisen since the filing of this appeal. (See, e.g., In re B.C. (2011) 192 Cal.App.4th 129, 150-151 [121 Cal.Rptr.3d 366] [reversing and remanding with clarification that in determining child's best interests, the court may consider events arising since the filing of the appeal].)
We recognize that a final decision regarding Alexandria's adoptive placement will be further delayed as a result of our determination of the merits of this appeal. That delay is warranted by the need to insure that the correct legal standard is utilized in deciding whether good cause has been shown that it is in the best interest of Alexandria to depart from the ICWA's placement preferences.
The order transferring custody of the minor to the R.s is reversed. The cause is remanded to the dependency court with directions to determine if good cause exists to deviate from the ICWA's adoptive placement preferences in accordance with this opinion.
Turner, P.J., and Mosk, J., concurred.