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Name: In re A.A.
Case #: F055097
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 10/28/2008

The “active efforts” ICWA finding under Welfare and Institutions Code section 361.7, subdivision (a), does not require the juvenile court to consider the issue of the Indian child’s placement. The mother of two preschool aged children gave birth to a child that tested positive for methamphetamine. She was a member of the Tule River Tribe (“the Tribe”). At the time, the father was in custody, awaiting trial for a murder charge. The Tulare DHHS sent the children to relatives who were enrolled members of the Tribe. A little more than a year later, the relatives requested that the children be removed from their care. The DHHS then placed the children in a non-relative Indian foster home that wanted to adopt them. Prior to a hearing to implement permanent plans for the children under section 336.26, the relative caretakers changed their minds and requested reconsideration for adoption. According to a report prepared by a clinical psychologist, the children suffered from reactive attachment disorder such that it would be detrimental to move them. The mother and the Tule River Tribe challenged the termination of parental rights. At issue was the juvenile court’s “active efforts” finding that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts proved unsuccessful. Appellants criticized DHHS and the juvenile court for not placing the children with their relatives until September 2006. Also, they asserted that neither DHHS or the court took the Tribe’s prevailing social and cultural standards into account when the relatives requested reconsideration for placement. However, the “active efforts” is now addressed separately from the issue of the Indian child’s placement. The active efforts finding incorporates what is otherwise referred to as reunification services. There is no suggestion that DHHS failed to provide mother with services, rather, mother simply failed to participate in any meaningful way in the services she was provided.
A mere reference to “connection with family” is not a compelling reason under the Indian Child Exception. The Indian Child Exception under Welfare & Institutions Code, section 366.26, subdivision (c)(1)(B)(vi), permits courts to consider whether compelling reasons exist such that termination of parental rights would be adverse to a child’s best interests. A compelling reason exists if termination would substantially interfere with a child’s connection to his tribe or if the tribe has identified a “planned permanent living arrangement.” (§ 366.26, subd. (c)(1)(B)(vi)(I) – (II).) The court is not limited to these reasons, and as a result, the Indian Child Exception confers broader discretion to the court than it would otherwise possess at a permanency planning hearing to consider whether termination would be detrimental to an adoptable child. The Tribe argued that a “connection with family” was a compelling reason, but this factor is not one of the statutory exceptions that applies to adoptable children in general. The reasons which may be compelling under the Indian Child Exception should relate somehow to the Indian child’s membership in his or her Indian tribe, and connection to the tribal community. A mere reference to “connection with family” does not suffice. Furthermore, the Tribe’s identification of guardianship as a plan was not compelling, because the Tribe had also recommended adoption as well. This undercuts the Tribe’s rationale that, according to its custom and practice, parental rights should never be terminated.