In re A.L. CA3

Filed 3/22/23 In re A.L. 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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 A.L., a Person Coming Under the Juvenile Court C097110
Law.
SACRAMENTO COUNTY DEPARTMENT OF (Super. Ct. No. JD239875)
CHILD, FAMILY AND ADULT SERVICES,
Plaintiff and Respondent,
v.
Y.S.,
Defendant and Appellant.
Appellant Y.S. (mother), mother of the minor, appeals from the juvenile court’s
order terminating parental rights and freeing the minor for adoption. (Welf. & Inst. Code,
§§ 366.26, 395.)1 Mother contends the juvenile court did not make a finding, as required
by section 366.26 and the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.)
1 Further unspecified statutory references are to the Welfare and Institutions Code.
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(ICWA), that continued custody of the minor would likely result in serious physical or
emotional damage to the minor. The Sacramento Department of Child, Family and Adult
Services (Department) concedes the error. We will accept the Department’s concession
and reverse and remand for limited proceedings in compliance with the ICWA.
BACKGROUND
A detailed recitation of the background of this case is unnecessary given the
limited nature of mother’s claim. The facts and procedures relevant to the sole issue on
appeal are as follows:
The newborn minor was removed from mother’s care and placed in protective
custody due to mother’s “ ‘active untreated mental health with violent tendencies.’ ” It
was initially determined that the ICWA did not apply. In June 2019, pursuant to a
dependency petition filed by the Department, the juvenile court took jurisdiction over the
minor and ordered the minor removed from mother’s care and custody. The court
terminated mother’s reunification services in December 2020 and set the matter for a
section 366.26 hearing.
Over the course of the proceedings, it was determined that the minor was indeed
an Indian child whose biological father was a member of the Standing Rock Sioux Tribe.
The minor was eventually placed with her maternal aunt pursuant to the court’s order to
place the child according to the ICWA placement preference.
The contested section 366.26 hearing commenced on September 12, 2022. The
parties stipulated to qualification of Spirit Grey Bull (Ms. Grey Bull), as an expert
witness for the Standing Rock Sioux Tribe. Ms. Grey Bull testified she reviewed a
number of the Department’s reports, she was knowledgeable about the tribal customs of
the Standing Rock Sioux Tribe, and she believed the Department made active efforts and
provided appropriate services to mother in an attempt to alleviate the issues associated
with removal of the minor. It was her opinion that the parents’ conduct was unacceptable
by the standards of culture within the Standing Rock Sioux Tribe. Ms. Grey Bull further
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opined that return of the minor to mother’s custody would likely result in serious physical
and emotional damage to the minor due to mother’s lack of consistent and substantial
progress in reunification services, her inability to maintain a regular medication regimen,
and her lack of participation in seeking an appropriate home environment for the minor.
Following testimony from mother and closing arguments from counsel, the court
terminated parental rights and ordered adoption as the appropriate permanent plan after
finding “[b]y a preponderance of the evidence return of the child to the physical custody
of the parents would create a substantial risk of detriment” and “[t]termination of parental
rights would not be detrimental as defined by [section] 366.26[, subdivision] (c)(1).” The
court also found that the Department made active efforts to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family, which
efforts proved unsuccessful, and that the minor’s placement was consistent with the
ICWA placement preference as set forth in section 361.31.
DISCUSSION
Mother contends the juvenile court erred in terminating her parental rights by
failing to make a finding that custody of the minor was likely to result in serious physical
or emotional damage to the minor, a finding commonly referred to as “the ICWA
detriment finding.” (In re M.B. (2010) 182 Cal.App.4th 1496, 1502.) Section 366.26,
subdivision (c), provides that where, as here, an Indian child is involved, a court shall not
terminate parental rights if “[t]he court does not make a determination at the hearing
terminating parental rights, supported by evidence beyond a reasonable doubt, including
testimony of one or more ‘qualified expert witnesses’ as defined in Section 224.6, that the
continued custody of the child by the parent is likely to result in serious emotional or
physical damage to the child.” (§ 366.26, subd. (c)(2)(B)(ii); see also 25 U.S.C.
§ 1912(f); In re Matthew Z. (2000) 80 Cal.App.4th 545, 551-556 [finding that serious
emotional or physical damage is likely need not be made at the § 366.26 hearing but must
be made before parental rights are terminated].)
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The Department concedes that, while the court heard and considered the testimony
of the ICWA qualified expert, it did not expressly make the required ICWA detriment
finding. We accept the Department’s concession as proper. It is undisputed that the
minor was an Indian child for purposes of the ICWA. The court considered the
Department’s reports and the testimony of Ms. Grey Bull and mother. Ms. Grey Bull, a
qualified expert witness, provided testimony that continued custody of the minor by
mother would likely result in serious emotional and physical damage to the minor.
However, the court did not make a determination, supported by evidence beyond a
reasonable doubt, that mother’s custody of the minor was likely to do so, as required by
section 366.26, subdivision (c)(2)(B)(ii). This was error. The Department agrees, as do
we, that limited remand is appropriate for compliance with section 366.26 and 25 United
States Code section 1912(f).
DISPOSITION
The order terminating parental rights is reversed and the matter is remanded to the
juvenile court for further proceedings in compliance with the ICWA as described in this
opinion. If, on remand, the court determines, based on evidence beyond a reasonable
doubt, that mother’s custody of the minor is likely to result in serious emotional or
physical damage to the minor, then the court shall make the appropriate finding and
reinstate the order terminating parental rights. If, on the other hand, the court does not
make such a finding, the court shall hold such further proceedings as are appropriate.
/s/
EARL, J.
We concur:
/s/
ROBIE, Acting P. J.
/s/
HULL, J.
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