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Name: In re N.S.
Case #: D077177
Court: CA Court of Appeal
District 4 DCA
Division: 1
Opinion Date: 09/17/2020
Subsequent History: Ordered published 10/9/2020

The juvenile court did not err when it terminated mother’s parental rights, despite the Tribe’s recommendation that guardianship should be the permanent plan. Mother appealed from an order terminating her parental rights to the minor and selecting adoption as the permanent plan. The minor’s father was a member of the San Pasqual Band of Mission Indians (the Tribe), which had been involved in the dependency proceedings since the finding that ICWA applied. Mother contended that the Tribe’s “decree” selecting guardianship as the permanent plan preempts the statutory preference for adoption under section 366.26. The appellate court rejected the argument. What mother referred to as a “decree” was a letter from the Tribe recommending guardianship with the grandmother as the best permanent plan option. She contended that the state’s legislative preference for adoption frustrates the tribal tenet that parental rights should remain intact, and that the doctrine of preemption applied. The appellate court found that mother’s counsel forfeited the issue at the 366.26 hearing when counsel stated they did not believe the Tribe had automatic veto power. Further, the argument was without merit. The state court has jurisdiction to select the permanent plan and is not required to order whatever plan the Tribe recommends. Jurisdiction was with the state because no one petitioned to transfer the case to the jurisdiction of the Tribe. Mother also argued that minor’s counsel breached his duties under section 317 and provided ineffective assistance of counsel by failing to investigate and determine what benefits or membership rights the minor was entitled to receive from the Tribe before terminating parental rights. The appellate court rejected this argument, finding that mother could not show she was prejudiced because there was no indication in the record that such benefits were available, and the Tribe had taken little interest in the minor previously. Mother also contended that termination of parental rights would substantially interfere with the minor’s connection to the Tribe, and therefore the juvenile court erred by not finding that the Indian Child exception to adoption applied. The appellate court rejected this argument as well. There was no evidence that the minor had any connection to the Tribe at the time of the 366.26 hearing. Placement with grandmother would continue the minor’s connection to his heritage, and grandmother expressed a willingness to involve the minor with the Tribe after she adopted him. The evidence amply supported a finding that termination of parental rights would not be detrimental to the minor. He spent nearly his entire life in grandmother’s care and wanted to be adopted by her. The appellate court also held that the juvenile court’s ICWA detriment finding was supported by substantial evidence. Mother had a long history of drug abuse and relapse, and even the Tribe recommended that the minor remain with grandmother, albeit in a guardianship. Further, the court did not err when it found the beneficial parent-child relationship did not apply. Substantial evidence supported the conclusion that the minor enjoyed his relationship with his mother, but it was not a parent-child relationship. He had only lived with her for 20 months of his seven years of life, and the relationship was “loving and friendly” but his parental bond was with his grandmother.

The full opinion is available on the court’s website here: