L.A. Cnty. Dep't of Children & Family Servs. v. J.E. (In re Alexandria P.)

• Decision Date: 08 July 2016
• Docket Number: B270775
• Citation: 204 Cal.Rptr.3d 617,1 Cal.App.5th 331
• Court: California Court of Appeals Court of Appeals
• Parties: IN RE ALEXANDRIA P., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. J.E., Defendant and Respondent; R.P., et al., Objectors and Appellants; Choctaw Tribe of Oklahoma, Intervenor and Respondent.

1 Cal.App.5th 331

204 Cal.Rptr.3d 617

IN RE ALEXANDRIA P., a Person Coming Under the Juvenile Court Law.Los Angeles County Department of Children and Family Services, Plaintiff and Respondent

v. J.E., Defendant and Respondent;R.P., et al., Objectors and Appellants;Choctaw Tribe of Oklahoma, Intervenor and Respondent.

B270775

Court of Appeal, Second District, Division 5, California.

Filed July 8, 2016

Roberto Flores ; Wilkinson Walsh + Eskovitz, Lori Alvino McGill, for Objectors and Appellants.

Mary C. Wickham, County Counsel, R. Keith Davis, Acting Assistant County Counsel, Kim Nemoy, Principal Deputy County Counsel, for Plaintiff and Respondent.

Law Offices of Joanne Willis Newton, Joanne D. Willis Newton, San Diego, under appointment by the Court of Appeal, for Defendant and Respondent.

Christopher Blake, San Diego, under appointment by the Court of Appeal, for minor Alexandria P.

Melissa L. Middleton, for Intervenor and Respondent.

Munger, Tolles & Olson, James C. Rutten, Jordan D. Segall, Wesley T.L. Burrell, Los Angeles, Varun Behl, San Francisco, for Advokids, Center for Adoption Policy and Professors Joan H. Hollinger, Elizabeth Bartholet, and Barbara Bennett Woodhouse, as Amici Curiae.

KRIEGLER, J.

INTRODUCTION

For the third time this case comes before us on the issue of whether the lower court has correctly ordered an Indian child, Alexandria P., to be placed with her extended family, Ken R. and Ginger R. in Utah, after concluding that Alexandria's foster parents, de facto parents, Russell P. and Summer P., failed to prove by clear and convincing evidence that there was good cause to depart from the adoptive placement preferences set forth in the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901 et seq. ).¹

We have twice remanded the matter because the lower court used an incorrect standard in assessing good cause. The dependency court has now correctly applied the law governing good cause, considering the bond Alexandria has developed over time with the P.s, as well as a number of other factors related to her best interests. Those other factors include Alexandria's relationship with her extended family and half-siblings; the capacity of her extended family to maintain and develop her sense of self-identity, including her cultural identity and connection to the Choctaw tribal culture; and the P.s' relative reluctance or resistance to foster Alexandria's relationship with her extended family or encourage exploration of and exposure to her Choctaw cultural identity.

Because substantial evidence supports the court's finding that the P.s did not prove by clear and convincing evidence that there was good cause to depart from the ICWA's placement preferences, we affirm.

PROCEDURAL BACKGROUND

We briefly review the key procedural events that have brought this case up to the current appeal.

Initial good cause hearing and decision (Judge Pellman)

The following excerpt from our 2014 opinion (In re Alexandria P. (2014) 228 Cal.App.4th 1322, 176 Cal.Rptr.3d 468 (Alexandria I )) summarizes the initial history of the case: “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.^{[ 2 ]} 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 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 de facto family. The child's court-appointed counsel argued that good cause did not exist. The court ordered the girl placed with the extended family in Utah after finding that de facto parents had not proven by clear and convincing evidence that it was a certainty the child would suffer emotional harm by the transfer.” (Alexandria I, supra, 228 Cal.App.4th at pp. 1328–1329, 176 Cal.Rptr.3d 468.) The de facto parents appealed, and this court issued a writ of supersedeas staying the court's order pending resolution of the appeal, with expedited briefing. (In re A.P. (Mar. 4, 2014, B252999) [order].)

Court of Appeal opinion reversing and remanding

In an opinion filed August 15, 2014, we reversed and remanded for the lower court to determine under the appropriate standard whether de facto parents could show good cause to depart from the placement preferences of the ICWA. (Alexandria I, supra, 228 Cal.App.4th 1322, 176 Cal.Rptr.3d 468.) Our opinion acknowledged that over a year had passed since the earlier good cause hearing, and the court was free to consider facts and circumstances that arose since the filing of the first appeal. (Id . at p. 1357, 176 Cal.Rptr.3d 468.) Remittitur issued on November 7, 2014.

Additional good cause hearing and decision (Judge Trendacosta)

On remand, the case was assigned to Judge Trendacosta, who held a hearing spanning five days in September 2015 to determine whether good cause existed to depart from the ICWA's placement preferences. The parties submitted written closing arguments on September 16, 2015, and Judge Trendacosta issued a November 3, 2015 statement of decision concluding that the de facto parents had not proven good cause by clear and convincing evidence.

Peremptory writ and remand

The P.s again sought a supersedeas writ staying Judge Trendacosta's order to transfer Alexandria to the R.s' home in Utah. On November 12, 2015, we issued an order notifying the parties we were considering treating the petition for writ of supersedeas as a petition for writ of mandate, and issuing a peremptory writ in the first instance vacating the court's November 3, 2015 order and directing the court to apply the correct burden of proof. We explained the lower court's error by pointing out that Judge Trendacosta's written decision “described the burden on the de facto parents in language that is identical, word-for-word, to the language we disapproved as an incorrect statement of law in the prior appeal.” (In re Alexandria P. (Nov. 12, 2015, B268111) [order].) Both Judge Pellman and Judge Trendacosta stated the de facto parents had not proven by clear and convincing evidence “that either the child currently had extreme psychological or emotional problems or would [definitively] have them in the future.” In contrast, our Alexandria I opinion clarified that de facto parents needed to show “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.” (Alexandria I, supra, 228 Cal.App.4th at p. 1354, 176 Cal.Rptr.3d 468.)

After considering letter briefs filed by the parties, we directed the dependency court to vacate its November 3, 2015 order, and enter a new placement order based on application of the burden of proof set forth in Alexandria I, supra, 228 Cal.App.4th at page 1354, 176 Cal.Rptr.3d 468. We considered the nature of the error, the already lengthy dependency in this case, and the need for a prompt and permanent resolution of the issue of placement. We also emphasized that time was of the essence, directing the Presiding Judge of the Juvenile Court of Los Angeles County to ensure a judicial officer was promptly assigned to the case, and directing the lower court to resolve the issue of placement within 30 days of issuance of a remittitur, absent extraordinary circumstances. We stated that we were expressing no opinion on how the issue of placement should be resolved. (R.P. v. Superior Court (Nov. 25, 2015, B268111), 2015 WL 7572569[nonpub. opn.].) On January 29, 2016, we dismissed as moot the appeal of Judge Trendacosta's November 3, 2015 order, returning jurisdiction to the lower court.

Third good cause decision (Judge Diaz)

The case was ultimately assigned to Judge Diaz, who rendered a decision from the bench on March 8, 2016. Judge Diaz concluded the de facto parents had not shown good cause to depart from the ICWA's placement preferences, and he ordered Alexandria removed from the custody of the P.s and placed with the R.s in accordance with the ICWA.

Current Appeal

The P.s appealed on March 9, 2016, and petitioned for a writ of supersedeas the following day. This court granted a temporary stay on March 11, 2016, and on March 18, 2016, we denied the petition for writ of supersedeas. In early April, we granted calendar preference and set an expedited briefing schedule, with oral arguments taking place on June 10, 2016.³

FACTUAL BACKGROUND⁴

A. Facts preceding first good cause hearing

In order to give adequate background information, we repeat an excerpt from our 2014 opinion summarizing the case history up to Judge Pellman's decision:

“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.^{[ 5 ]} The P.s were Alexandria's third foster care placement, initially arranged in December 2011 as a ‘respite care’ placement ^{[ 6 ]} that evolved into a long-term foster care placement. The P.s were aware that Alexandria was an Indian child and her placement was subject to the...