1

Filed 11/20/13

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

In re AUTUMN K., a Person Coming 

Under the Juvenile Court Law.

DEL NORTE COUNTY DEPARTMENT 

OF HEALTH & SOCIAL SERVICES,

Plaintiff and Respondent,

v.

PATRICIA M.,

Defendant and Appellant.

 A136586

 (Del Norte County

 Super. Ct. No. JVSQ11-6026)

This appeal challenges an order terminating the parental rights of mother 

Patricia M. and father Bryan K. to their daughter Autumn K. and placing the child for 

adoption. Because Autumn was of Chickasaw descent and thus an Indian child, the 

dependency proceeding fell within the provisions of the Indian Child Welfare Act, 

25 U.S.C. section 1901, et seq. (ICWA). As such, there were particular substantive 

requirements with which the juvenile court was obligated to comply when selecting a 

permanent plan for Autumn. Most significantly, absent good cause to deviate from this 

requirement, ICWA obligated the court to place Autumn with a member of her extended 

family, a member of her tribe, or another Indian family. (25 U.S.C. § 1915.) Here, there 

were two potentially viable, ICWA-compliant placements: maternal grandmother Teresa, 

who had custody of Autumn’s six siblings and had sought placement of Autumn from the 

outset of the dependency case, and maternal aunt Beatrice. Despite that, the court,

relying on a conclusion by respondent Del Norte County Health and Social Services 
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Department (Department) that Autumn could not be placed in her grandparents’ home, 

placed Autumn in a non-Indian home with a distant relative. 

On appeal, the parents contend the juvenile court erred for a multitude of reasons. 

We agree with one argument that necessitates reversal: the Department erred in 

determining maternal grandfather José had a nonexemptible criminal conviction such that 

Autumn could not be placed with her grandparents. We conclude two different statutory 

provisions instructed that the conviction was in fact exemptible, and the Department was 

thus obligated to evaluate the request for an exemption on its merits. We therefore 

reverse.

I. BACKGROUND1

Autumn’s Birth and the Indian Custodian Designation Forms

Autumn was born on February 23, 2011, in Crescent City. She was the seventh 

child born to Patricia and the only one fathered by Bryan. Due to Patricia’s long history 

of substance abuse, her six other children lived with her mother, Teresa, under legal

guardianships through the probate department. According to Patricia, before Autumn’s 

birth and again immediately after, she executed an Indian custodian form designating 

Teresa as Autumn’s Indian custodian. The form was entitled “Reighini Rancheria/Social 

Service Designation of Indian Custodian (25 U.S.C. § 1901, et seq).” As provided in the 

form, Patricia transferred the care and custody of her daughter to Teresa, designating her

as Autumn’s Indian custodian. Teresa also signed the forms, accepting the designation. 

According to Patricia, Bryan was present both times the form was signed. 

 

1 Many of the background facts are well known to this Court, as we previously 

considered—and denied—petitions by Patricia and Bryan for a writ of mandate after the 

juvenile court terminated reunification services to both parents. (Patricia M. v. Superior 

Court (May 25, 2012) A134777 [nonpub. opn.].) We set forth only those facts that are 

relevant to the issues now before us, which facts we derive from the record filed in this 

appeal as well as that filed in the prior writ proceeding. On our own motion, we take 

judicial notice of the record in Patricia M. v. Superior Court, supra, A134777. (Evid. 

Code § 452, subd. (d).)
3

Autumn’s Initial Removal From Her Parents’ Care

Although Patricia tested positive for amphetamines and methamphetamines on 

multiple occasions during her pregnancy, both she and Autumn tested negative for drugs 

at the time of Autumn’s birth. Nevertheless, a social worker from the Department 

appeared at the hospital and removed Autumn from Patricia’s and Bryan’s care, placing 

her in protective custody. According to both Patricia and Teresa, they attempted to give 

the Indian custodian forms to the social worker to prevent Autumn’s removal, but the 

social worker would not take them. 

Five days after Autumn’s birth, the Department filed a Welfare and Institution 

Code section 3002petition alleging that the infant came within the juvenile court’s 

jurisdiction pursuant to subdivisions (b) and (j) due to her parents’ substance abuse 

problems. Shortly thereafter, Patricia signed a parental notification of Indian status, 

representing that she was a member of the Chickasaw Nation. Notice of the dependency 

proceeding was sent to the Chickasaw Nation as required by ICWA.3

Autumn’s Return to Patricia’s and Bryan’s Care

At a detention hearing a week after Autumn’s removal, the court ordered her 

returned to her parents’ care on the conditions they reside in the home of Teresa and José

and abstain from drug use. The family was provided family maintenance services. 

Detention and Jurisdiction

On April 22, 2011, the Department filed a section 387 petition alleging that both 

parents had recently tested positive for drugs. A detention report filed the same day 

recommended Autumn be detained. At a detention hearing, the court adopted the 

Department’s recommendation, and Autumn was placed in foster care. At the hearing, 

Teresa addressed the court, asking why Autumn could not remain in her home. The 

transcript of the hearing is not in the record, and the minutes of the hearing do not reflect 

the court’s answer. It is suggested elsewhere, however, the court was concerned about 

 

2 All undesignated statutory references are to the Welfare and Institutions Code.

3 Autumn subsequently enrolled as a member of the Chickasaw Nation. There is 

no dispute that ICWA governed this dependency proceeding.
4

Teresa’s ability to adequately care for her newborn granddaughter given that she was 

already caring for Patricia’s six other children, as well as her own adult son who was 

suffering from Leukemia. 

At a jurisdictional hearing the following week, the parents pleaded no contest to 

the allegations in the supplemental petition, and the matter was continued for disposition. 

The possibility of overnight visitation with Teresa was discussed, but the social worker 

believed it was too early, and the court agreed. 

At some point subsequent to the jurisdictional hearing, Teresa submitted an 

application for placement of Autumn. The Department denied it by letter dated May 25, 

2011. The reason for the rejection was given as follows: “The Department does not feel 

that you have the ability and capacity to provide the care and supervision to meet the 

child’s needs at this time.” 

Disposition and Family Reunification Services

A contested dispositional hearing was held on June 17, 2011. At the hearing, 

Teresa submitted multiple letters attesting to the skill and compassion with which she 

cared for her grandchildren. In one, the Del Norte High School assistant principal 

described how involved Teresa had been in the schooling of her other grandchildren, 

attending important academic meetings concerning the children, making sure they were 

involved in local sports, and responding to discipline issues. In another, the Crescent Elk 

Middle School dean of students represented that Teresa had “advocated strongly for her 

grand-children, exhibiting a professional and open-minded approach to issues and 

discussions regarding their education. She genuinely has their best interest in mind at all 

times, and places them at the forefront of her life.” According to the dean, “She stands 

up for them when necessary, and holds them accountable as well.” He described what a 

“positive influence” Teresa had been on her grandchildren and represented that she 

provided them “with a safe, comfortable, and positive household environment.” The Joe 

Hamilton Elementary School principal described how whenever one of the younger 

grandchildren, who was a special education student, had a bad day, Teresa would quickly

respond to calls from the school and calmly speak to her grandson about the issues he 
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was having. She was, according to the principal, “able to reason with him in a supportive 

way that often gets him back on track and ready to return to the classroom.” 

Included in the packet of letters was one from Teresa herself, responding to the 

May 25 letter rejecting her request for placement. According to Teresa, she had been told 

the denial was based on an incident that happened in 2006. She advised the Department: 

“That incident was cleared up and I was not found at fault. Most of my grandchildren 

have mental health needs and as a concerned grandparent I took it upon myself to take a 

class from Del Norte County Child Care Council: The Incredible Years. I completed and 

received a certificate for 24 hours of participation, this class lasted two weeks. This class 

gave me a better understanding of ADHD issues and concerns.” She asked the 

Department consider the goal of ICWA to “ ‘protect the best interest of Indian children 

and to promote the stability and security of Indian Tribes and families.’ ” In closing, she 

noted that her son had cancer and, although she had been taking care of him, he was in 

remission, which would allow her to spend more time with her grandchildren.4

At the hearing, a representative of the Chickasaw Nation advised that the tribe was 

recommending placement with Teresa. The Department represented that it supported any 

placement recommendation by the tribe. Despite this, the court voiced concerns 

regarding placement with Teresa, ultimately ordering that Autumn was to remain in her 

foster care placement while the Department provided family reunification services to 

both parents. The matter was continued for a six month review.

Autumn’s Placement With Amanda and Caleb C.

In September 2011, Patricia developed concerns about the foster home in which 

Autumn had been living since her April detention. She asked the Department to place 

Autumn with Amanda C. and Caleb C. (collectively, the C.’s), who were licensed foster 

parents. Caleb was Patricia’s former parole agent, and Amanda was her second cousin, 

making Amanda and Autumn second cousins once removed. Autumn was placed with 

them on October 15, 2011. 

 

4

Tragically, Teresa’s son passed away three months later. 
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The Chickasaw Nation Intervenes

On November 28, 2011, the Chickasaw Nation, by Indian Child Welfare social 

worker Regena Frye, moved to intervene in the case, which motion the juvenile court 

granted on December 9, 2011. 

Six Month Status Review

Meanwhile, on December 7, 2011, the Department filed a six month status report, 

advising that both parents were homeless, were still actively using drugs, and had made

little to no progress on their case plans, having failed to stay clean despite multiple 

attempts at rehabilitation. In light of the parents’ failed efforts to achieve and maintain 

sobriety, the Department considered it unlikely Autumn would be able to reunify with 

them within 12 months from detention. It therefore recommended termination of 

reunification services for both parents. The Department represented that the current 

foster parents—the C.’s—were extended family members of Patricia, although the nature 

of the relationship was not specified. The Department also noted that Patricia’s sister in 

Oregon (later identified as Beatrice) had contacted the Department regarding placement 

but subsequently declined to move forward with the placement application.

On December 13, 2011, Teresa submitted yet another request for placement, 

addressing claims that her home was not fit for Autumn to live in. In terms of space 

concerns, she advised that each grandchild had a bed and space for his or her personal 

items. The same would be the case for Autumn. According to Teresa, “She would be 

with her brothers and sister. She would be part of the family on a daily basis. She would 

be able to grow up among her family. I have recently lost a son and my time is open to

care for Autumn without other outside appointments. I am very capable of caring for my 

granddaughter and want to keep the children together.” 

Teresa described how she would maintain Autumn’s connection to the Indian 

community: “My family is part of this Indian community and my grandchildren 

participate in local Native community events and activities throughout the school year 

and summer. Even though we are not from here, we are part of this Native community 

and my grandchildren are able to experience and learn local culture, language, 
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tradition[]s. Autumn, being in my home, would allow her to participate, experience and 

learn her Native heritage from her family and community. If Autumn continues to be 

placed out of our home, it is not guaranteed that she will have these experiences as a 

Native person. ICWA law [was] created to prevent this from happening. To[o] many 

Native children are taken away from their family, culture and Native teaching and I ask 

that I be given a chance to raise my granddaughter with her brothers and sister and among 

the Native community.” 

Teresa also detailed the school and extracurricular schedules of her six other 

grandchildren, demonstrating that, given their schedules, she and Autumn would have 

four hours to themselves each morning. She acknowledged the concern that her husband 

José had “several DUI’s,” but represented she was the sole transporter of her 

grandchildren, and would be for Autumn as well. She also identified three individuals 

who were available to help should she need assistance in transporting the children to their 

numerous activities. 

On December 20, 2011—two weeks after the Department recommended 

termination of reunification services—Frye submitted a report on behalf of the 

Chickasaw Nation. She advised that in a December 2 conversation with Department 

social worker Bob Beck, Beck had represented that despite a recent relapse by Patricia, 

the Department would continue to offer reunification services, a representation he then 

contradicted in the December 7 status report. Frye further advised that the Chickasaw 

Nation was recommending continued reunification services “in an ‘Active Effort’ to 

prevent the breakup of the Indian Family.” She also requested the Department consider 

placing Autumn with her grandmother and half-siblings. 

On December 29, 2011, Teresa filed a de facto parent request. In addition to 

detailing the amount of time she spent with Autumn and the activities she did with her, 

Teresa once again requested placement of Autumn so she could be with her family. 

The matter came on for a six month review on January 6, 2011. At the hearing, 

Frye, who appeared telephonically, represented that the tribe wanted Autumn placed with 

Teresa under a legal guardianship. The Department, however, recommended Autumn
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remain in her current foster placement, as she was doing well there and the placement 

was ICWA compliant because the foster mother was a “member of the family.” The six

month review hearing was continued for a contested hearing, and the court ordered 

Teresa be given a minimum of four hours a week visitation with Autumn.

On January 31, 2012, the Department filed an addendum report, this time 

recommending the continuation of reunification services to both parents until they had 

received “a year’s worth of reunification services from the time of detention. . . .” The 

Department also advised it had assigned a new social worker so Patricia could focus on 

reunification rather than her feelings of conflict with the prior social worker. It 

recommended Teresa be given eight hours a month visitation instead of four hours per 

week because it felt four hours a week was “a bit much.” 

On February 10, 2012, the court granted a request by the foster parents to be 

designated de facto parents. It also denied Teresa’s de facto parent petition and reduced 

her visitation to eight hours per month. 

Prior to the contested review hearing, Teresa filed an amended de facto parent 

status request. In a supporting letter, she pleaded with the court: “When Autumn was 

taken from Patricia, it was not anything I was doing wrong. You said in court that 

because my younger son was dying from Leukemia you felt it was better to remove her. 

My son is gone and I now have time and space for Autumn. I feel I am being punished 

because of personal issues beyond my control. I would also like to restate that I have 

many support services and friends that are more than willing to help me transport the 

children to activities and appointments and school functions as needed. [¶] I am a 

devoted grandmother to my grandchildren and only want the best for them. I was raised, 

with the knowledge that the children should be kept together. We are taught to make do 

with what you have and provide and love all the children equally. I understand that the 

foster parents love Autumn too, but Autumn is my blood family and she should be with 

me and her brothers and sisters.” Teresa urged the court to give Autumn’s siblings “the 

opportunity to grow up with their younger sister. They miss her terribly . . . . I feel that 

this separation is breaking the bond the children need. [¶] I ask you to please consider the 
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ICWA law, that stresses keeping the children together. Too many times in the past 

Native children have been taken away from family and adopted into non-Native homes. 

They loose their family identity, they loose their connection to their Native Heritage, 

culture and traditions. Our family is part of this Native community and would like 

Autumn to have the chance to experience her Native culture with her family[.]” In 

support, Teresa appended letters from longtime friends and an employee of the Del Norte 

Indian Education Center in Crescent City, all of whom attested to her dedication to her 

grandchildren and her commitment to their upbringing. 

Although it is unclear from the record how this came about, around that same 

time, the Department apparently determined that José had a criminal conviction that 

precluded placement. A request for an exemption of that conviction was made, which the 

Department denied on February 15, 2012. 

Termination of Reunification Services

On February 21, 2012, the matter came on for a contested review hearing. 

Counsel for Autumn contested the Department’s new recommendation to continue 

reunification services, and the court took evidence on the matter. At the conclusion of 

the hearing, counsel for the Department advised it was now of the opinion that active 

efforts had been made to reunify the family, and it was no longer recommending 

additional reunification services. 

After closing arguments, the court found by clear and convincing evidence that 

active efforts had been made to reunify the family but neither Patricia nor Brian had 

taken advantage of the many services provided. With that, the court terminated 

reunification services to both parents, and set the matter for a section 366.26 selection 

and implementation hearing on June 15, 2012. Autumn was maintained in her foster 

placement. 

Patricia and Bryan Unsuccessfully Petition for Extraordinary Writ

On March 14, 2012, Bryan filed a petition for extraordinary writ, arguing that the 

juvenile court erred in finding the Department made “active efforts” to reunify the family. 

Patricia’s followed a week later, replicating Bryan’s petition word for word, save for the 
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addition of Frye’s December 20, 2011 report as Exhibit A. We ordered the matters 

consolidated for all purposes, and by order dated May 25, 2012, we denied both writ 

petitions, affirming the juvenile court’s finding that the Department made active efforts to 

reunify the parents with Autumn. (Patricia M. v. Superior Court, supra, A134777.) 

Patricia Requests Reinstatement of Reunification Services

Meanwhile, on May 15, 2012, while the writ petitions were pending before us, 

Patricia filed a section 388 request, seeking reinstatement of reunification services on the 

grounds that she was participating in a treatment program and had been testing clean. 

The Department Recommends Termination of Parental Rights and Adoption 

by the C.’s

On June 6, 2012, the Department filed a section 366.26 report recommending the 

court terminate the parental rights of Patricia and Bryan and select and implement a 

permanent plan of adoption. The Department advised that the parents continued to have 

problems. After services were terminated, Patricia made another effort at rehab. She 

relapsed again, however, proving to the Department she was unable to remain clean and 

sober. Bryan was incarcerated due to a domestic violence incident between him and 

Patricia. It summarized: “Both parents were offered services to reunify with their 

daughter for approximately 10 months. However, the active efforts by the Department 

were unsuccessful, as found by the Court in February in 2012 and confirmed by the Court 

of Appeal in June of 2012. It is also apparent that circumstances haven’t improved for 

the parents, and there is not a substantial probably [sic] that Autumn could be returned, if 

services were to be offered again. Therefore, the Department is recommending that the 

parental rights of the parents be terminated.” 

In terms of a permanent plan, the Department recommended adoption by the C.’s: 

“Autumn is a 15 month old little girl who has spent the majority of her life bouncing back 

and forth from visits to her foster homes. Autumn is now in a loving, relative, two parent 

family home that is extremely dedicated to meeting her needs. The C.’s can offer 

Autumn a safe, stable, and secure parenting relationship, love, unconditional 

commitment, and lifelong support in a legal adoption. They can also offer her an 
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opportunity to know her culture and her family. Autumn deserves permanency and 

normalcy in her life and the Department strongly believes the selection of the permanent 

plan of adoption with the C.’s would be in Autumn’s best interest.” 

The Department represented that Amanda’s mother and Teresa were first cousins, 

making Amanda and Autumn second cousins once removed. As such, the Department 

claimed, the home met ICWA placement requirements. Further, while Amanda was 

non-Indian, she grew up in an Indian household because her adoptive father was a Yurok 

tribal member. She had a “great” relationship with him, and he would assist in teaching 

Autumn about her Native American heritage. 

The Department noted that Teresa had requested placement of Autumn, but the 

request was denied through the licensing process, identifying José’s criminal history as 

the reason Autumn could not be placed in their home. According to the Department, it 

was clear Teresa loved Autumn, and the C.’s were hopeful that once the dependency 

proceeding concluded, Teresa could settle into her role as a grandmother to Autumn and

move past her feelings of anger and disappointment so they could have a respectable 

working relationship for the sake of all of Teresa’s grandchildren. 

In an adoption assessment appended to the section 366.26 report, adoption 

specialist Teddee-Ann Boylan recommended Autumn be adopted by the C.’s. According 

to the assessment, Autumn had a “secure and nurturing relationship with her potential 

adoptive family” and had “substantial emotional ties” to them. Removal from their care, 

Boylan opined, would be detrimental to Autumn’s well being, and she would benefit 

from the establishment of a permanent parent/child relationship with them. 

Boylan also advised that the Chickasaw Nation’s first choice for Autumn’s 

placement was in Teresa’s home with her grandparents and half-siblings, if the 

grandfather’s nonexemptible criminal history could be expunged. Barring that, the tribe 

had initially agreed with placement with the C.’s, but then changed its recommendation, 

seeking placement of Autumn with maternal aunt Beatrice who lived in Oregon. The 

tribe believed this placement would be better for Autumn because it would ensure regular 
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contact between Autumn and Teresa, contact that might not happen under adoption by the 

C.’s because Amanda and Teresa had “challenges in their relationship.” 

Boylan also advised that Patricia claimed to have signed Indian custodial papers at 

the hospital that were not considered when Autumn was taken into emergency custody. 

Patricia worried about post-adoption contact with Autumn because she and Amanda did 

not get along. According to Boylan, Patricia also questioned why ICWA placement 

preferences were not being followed. 

Boylan also described a meeting with Teresa regarding Autumn’s placement. At 

the meeting, Teresa expressed a “great deal of grief” at the inability to have Autumn

placed in her home. Teresa referred her to Rich England, whom the tribe and Teresa had 

retained as their ICWA expert. Boylan contacted England, who advised that Teresa was 

very dedicated and had demonstrated the ability to be a good advocate for her 

grandchildren. They were all well bonded and involved in the local Native American 

community. He voiced concern that Autumn would not have a connection to her culture 

should she be adopted by the C.’s, and he remained hopeful she would be placed with her 

grandparents and half-siblings if the grandfather’s criminal history were expunged. 

Boylan noted that the C.’s had been advised they could enter into a written 

agreement concerning post adoption contact between Autumn and her birth family. 

While they were amenable to maintaining contact with Autumn’s siblings, they did not 

believe contact with other family members would be suitable due to “on-going issues” 

stemming from their grief and anger about Autumn not being placed with them. 

The Tribe’s ICWA Expert Recommends Placement of Autumn With Teresa 

or Beatrice

On June 13, 2012, ICWA expert England submitted a report in which he opined

that the Department’s adoption recommendation was not in Autumn’s best interest as 

required by ICWA. As he explained it: “When an Indian child is removed from the 

home and adoption or guardianship is in question the child should be placed with 

extended Indian family within the family of the child’s tribal affiliation. The prospective 

family is not an Indian family according to the government’s federal recognition of tribal 
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members. The home is not a Tribal Family Home or family member within the child’s 

tribal affiliation. They are non Native family members that should have only been looked 

upon had there been no other alternatives within the immediate Indian family. . . . [T]he 

fact of the matter is that the maternal Aunt, Beatrice R., who is a Chickasaw tribal 

member and considered a preferred placement within the immediate Indian family, was 

never considered as a placement by the [Department] or actively pursued as a possible 

placement. Yet a second cousin three [sic] times removed to Autumn, with strained 

relations with the family, and who was actively looking for an adoptable child was 

chosen.” 

Further supporting his position that placement with the C.’s was not in Autumn’s 

best interest, England noted that there would be no tribal member living in the home to 

teach Autumn about her Chickasaw culture. Amanda’s stepfather was a Yurok tribe 

member, but he did not live in the C.’s home, was not a blood relative to either Amanda 

or Autumn, and was not Chickasaw. As a result, it was a “Non Indian Family Home,”

and placement there would not protect the sovereignty and culture of Autumn or her 

tribe, especially given that the Department failed to investigate other “culturally 

appropriate immediate family resources available for placements for Autumn . . . .” 

England was also of the opinion that termination of parental rights would be 

detrimental to Autumn. He acknowledged that neither Patricia nor Brian was a “viable 

resource[]” for her, but recommended that she be placed in Teresa’s home under a 

guardianship, where she would be reunified with her Chickasaw siblings and 

grandmother “and the rest of her ‘Immediate Indian Family.’ ” He also represented that 

the Chickasaw Nation was in agreement, provided the grandfather’s criminal history was 

expunged. 

Referring to Teresa, England described her as follows: “[S]he is a very active, 

well known, and integral part of the Indian Community here in Del Norte County. Teresa

is typical of many Indian Grandmothers with tradition and culture in that she is raising 

her grandchildren and teaching them their Chickasaw Culture while exposing them to 

local tribes. Teresa is an accepted Indian Person in our Community and her 
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grandchildren participate in and are accepted by the Indian Community as Chickasaw 

Tribal Members. Teresa’s grand children participate in all things for Native Youth which 

includes boat making, cultural presentations, crafts, and all other things provided to tribal 

members. Teresa is well known with her involvement in the schools and looked upon as 

someone that participates in everything that her grandchildren are involved with. This 

includes chaperoning field trips, going to IEPs, visiting teachers and staff, and being an 

exceptional advocate for all of her grandchildren’s well being. Teresa is also very well 

liked by the school staff and a very strong advocate in her grandchildren’s education and 

extra curricular activities. Teresa can often be seen driving her grandchildren to and from 

their practices and making sure that they have the same opportunities as everyone else. 

Throughout this process, and with the loss [of] her granddaughter, Teresa has shown 

determination and dedication by continuing to work toward bringing Autumn home to her 

Chickasaw family.” 

Keith Taylor, the Department’s ICWA expert, also submitted a report, first setting 

forth his experience and outlining the procedural background of the case. Then, in the 

one substantive paragraph, he conclusorily stated that he supported Autumn “remaining 

with the current care provider and being adopted because the child has lived half his [sic] 

life with the current foster parents. The placement with the current Substitute Care 

provider is in compliance with the parameters of the Indian Child Welfare Act (The foster 

mother is a cousin to the child-at-issue) and wishes to adopt the child-at-issue.” 

Hearing On the Section 388 Petition, Teresa’s De Facto Parent Request, and 

the Selection and Implementation Plan

On June 25, 2012, three matters came on for hearing: (1) Patricia’s section 388 

petition; (2) Teresa’s amended de facto parent request; and (3) the section 366.26 

selection and implementation plan. Patricia, Bryan, Teresa, and the C.’s were all present 

and represented by counsel, and counsel for Autumn was present as well. ICWA expert 

England appeared on behalf of the tribe. 

Patricia’s section 388 petition was heard first. Her attorney began by 

acknowledging “quite honestly” that she had “a weak case in terms of the request that she 
15

continue to receive services.” The court asked for an offer of proof as to the change in 

circumstances justifying additional services. Counsel responded by outlining the “several 

months of diligent and sincere efforts of [Patricia] to change her ways . . .” He admitted

“it’s true that when called to testify she will say that she relapsed within, what, two 

months,” but he suggested the burden was on the Department to demonstrate that the 

changed circumstances did not rise to the level necessary to justify a changed order. He

also suggested the services previously provided by the Department had been inadequate 

because of the friction between Patricia and the original social worker. After argument 

by other counsel, the court denied Patricia’s motion, citing our prior opinion that the 

Department made active efforts at reunification but that Patricia’s attempts at 

rehabilitation remained unsuccessful. 

The court then turned to Teresa’s de facto parent request which, according to the 

reporter’s transcript, it granted. Although the propriety of that order is not before us, 

much of the testimony also relates to the issues on appeal, and we discuss it accordingly.

Teresa testified that Patricia came to live with her for the last two months of her 

pregnancy. Shortly after Autumn was born, someone from the Department appeared at 

the hospital and took custody of her. A week later, she was returned to Patricia’s and 

Bryan’s care on the condition they lived in Teresa’s and José’s home. During the time 

Autumn was in her home, Teresa and Patricia took joint care of her, and Autumn’s six 

half-siblings also interacted with her. After approximately two months, Teresa reported 

to the Department that she suspected Patricia and Bryan were using drugs again. After an 

investigation, the Department took custody of Autumn. The court did not place Autumn

with her at that time because her 21-year-old son was extremely ill and she “had a lot on 

[her] plate,” including frequent trips to San Francisco for medical treatments. 

Consequently, Autumn was placed in a foster home, and later moved to the C.’s. 

At the time of the hearing, Teresa had guardianships over Patricia’s other six 

children who then ranged in age from five to 17. She had taken care of all of them since 

birth, except for two who came to her when they were four. All of the children had been

excited about Autumn’s birth and interacted with her while she lived in the home. 
16

Teresa visited with Autumn eight hours per month. She would bring many of 

Autumn’s siblings with her and they would play together. Although Autumn recognized 

her grandfather, she had little interaction with him because he was usually at work during 

visits. 

Teresa testified that at the time of Autumn’s birth, she signed an Indian custodian 

designation form, consenting to be Autumn’s Indian custodian. When Autumn was 

removed from Patricia’s care the second time, Teresa did not give the forms to the 

Department because Patricia had placed them in her trailer and Teresa did not know 

where they were. 

After all evidence was presented on the de facto parent request, the court indicated 

it did not think Teresa met the requirements to be granted de facto parent status. 

Acknowledging, however, that she had been very involved and important in the 

dependency proceeding, it expressed its intent to grant de facto parent status so she could 

participate in future proceedings. The court then turned to the permanency hearing. 

Evidence was taken over the course of three days, with Keith Taylor, the 

Department’s ICWA expert, the first to testify. Describing this as “a difficult case,” “a 

struggle,” Taylor was of the opinion the C.’s should be permitted to adopt Autumn. He 

believed adoption was an appropriate long-term placement plan, while guardianship 

would not provide sufficient permanency since it could be “unwound” in the future. 

Because Amanda was related to Autumn, Taylor believed the adoption would satisfy the 

ICWA placement preferences. He felt it important that Autumn have continuing contact 

with her siblings, and his recommendation that the C.’s adopt her was predicated on his 

trust that the C.’s would maintain post adoption visitation between the siblings. 

Taylor also believed Amanda was very committed to maintaining Autumn’s 

cultural ties with the Chickasaw Nation. He noted she was adopted and raised by an 

Indian man herself, and she understood the importance of maintaining Autumn’s 

connection to her culture. He acknowledged, however, he did not ask Amanda about her 

involvement with the Chickasaw culture, explaining he envisioned the Chickasaw contact 

coming through Teresa and Autumn’s siblings. He also expected Amanda to make an 
17

effort to connect Autumn to local tribal activities, although he was not aware of anything 

she was doing to connect Autumn to her heritage. Taylor felt a non-Indian family could 

set appropriate standards for an Indian child. 

On cross-examination, Taylor reiterated this was a very close case and the balance 

just tipped in favor the C.’s. He was aware the tribe wanted Autumn to be with Teresa, 

but he felt Autumn’s best interests were in adoption by the C.’s. He was also concerned 

about the grandfather’s criminal convictions, and he considered it relevant that Amanda 

was a bank manager and Caleb was a law enforcement officer. He was aware Autumn

had an aunt but he had not contacted her because he did not have her telephone number. 

When asked about compliance with the goal of preventing the breakup of the 

Indian family, Taylor testified that adoption by the C.’s satisfied that goal because 

Amanda was a distant relative. When asked how distant a relative had to be before he or 

she ceased to have an active identity as part of the Indian family, Taylor responded, 

“There’s some tribes that have direct descendants as tribal members. It really is—you 

know, we have people that identify as Native that couldn’t come up with a federal I.D. 

card . . . and we accept that. That’s not something that . . . we challenge. [¶] People 

identify as being Indian or Native, we just accept it. It doesn’t matter what their blood 

quantum is.” 

England was the next to testify. In his opinion, in the interest of keeping Autumn

within her culture, the Department was obligated to consider first her immediate family, 

here Teresa. He acknowledged the Department had deemed her home unsuitable, but

because the grandfather’s criminal record had been expunged,5it was arguably now an 

acceptable placement. Barring placement with Teresa, the Department should have 

considered alternate family members, in this case Beatrice, but it overlooked her as an 

option. Instead, the Department was recommending adoption by a “good family,” but 

one that had no cultural connection to the Indian community. And he considered

 

5

This presumably happened between June 13, when England submitted his report, 

and the June 25 permanency hearing.
18

Autumn’s isolation from her tribal roots harmful to her. As he put it: “[T]he dichotomy 

that we have seen in the courtroom is that you have a good family who would give this 

girl what she needs financially and emotionally. And I don’t argue those things. [¶] But 

as far as the Indian Child Welfare Act is concerned, that’s not what it’s about. It’s about 

protecting culture. [¶] And because this child is an enrolled member of the Chickasaw 

tribe, that tribe’s best interests are being represented right here, and if they lose this child 

to a non-Indian family who is loosely related to a Yurok person who just so happens to be 

a distant cousin of mine, that’s not—it’s not the same. It’s not the same as being raised 

within your own immediate family.” According to England, the Department was 

duty-bound to provide for Autumn’s best interests in accordance with ICWA. This, he 

opined, it had not done since it was advocating adoption by a non-Indian family. 

England had considered the effect of displacing Autumn from her home with the C.’s, but 

“attachment bonding does not supersede the Indian Child Welfare Act.” 

On the other hand, England described Teresa as a known part of the Indian 

community: “I’ve seen her in the Indian community. I’ve watched her at different 

community events. [¶] She’s very embedded in the Indian community. She knows a lot 

of our Yurok and Karok and Tolowa folks. She’s an Indian person within our Indian 

community, and she’s recognized as such, and that comes with being a participant, taking 

your kids to cultural events and enmeshing them in the culture and the quality that we 

have as Indian people here in our community. [ ¶] The Indian community is a 

combination of the tribes. It’s not just Yurok, it’s not just Tolowa. It’s a combination of 

the tribes. [¶] We all intermix, and people know each other. Even if they are not an 

Indian from this community, people know her and her children as Indians.” He could not 

say the same for the C.’s, whom he had never seen at Indian cultural events: “[T]he C.’s

are upstanding members by all accounts, but they are not Indian.” 

England also testified that Teresa was very involved in her grandchildren’s 

educational experience, often helping and checking in at school and assisting with 

extracurricular activities: “I’ve watched her over the last ten years, and she does a great 

job. She has a lot of grandkids that she takes care of and she provides care for.” 
19

Heather Friedrich, who had been the social worker on the case since January 2012, 

followed. She testified that Autumn could not be placed in Teresa’s home because even 

though José’s criminal history had been expunged, his prior convictions still precluded 

placement. This was according to Friedrich’s supervisor who was relying on a manual 

that indicated an expungement still did not allow placement. When asked if Teresa’s 

home would be a suitable placement but for the José’s criminal history, Friedrich 

responded, “At this time, we wouldn’t recommend it because we do not believe it would 

be in her best interests, because—as far as suitability of the home, I believe the home was 

appropriate if you take out the criminal background.” 

When asked about what the C.’s had done to introduce Autumn to Indian 

activities, Friedrich answered, “I have given them the enrollment packet for Autumn to 

be enrolled in the Chickasaw, and with that came some flash cards with some Chickasaw 

Indian words on them. And I know I’ve spoken with Ms. C. and she said she showed 

those to Autumn. [¶] There was also some coloring pages there, and she said Autumn

drew on the color pages. So given Autumn’s age and what she can do, I think Ms. C. has 

respected that.” 

At this point in the hearing, the court broke for lunch. After the break and out of 

the presence of witnesses, the Department provided the court with a document entitled, 

“Evaluator Manual Background Check Procedures.”6 The court read into the record the 

following passage from the manual: 

“The amount of exemption cannot be based on the criminal conviction that has 

been pardoned. Such a denial is not authorized by statute, and prohibited by law.

“Any doubt about the status of the conviction, call legal—however, convictions 

have been set aside or dismissed due to 1203.4 or 4(a) of the Penal Code are still 

considered convictions for exemption process and purposes pursuant to these Penal Code 

sections, and the Health and Safety Code.

 

6

The manual was not admitted into evidence and is thus not part of the record 

before us.
20

“When the court sets aside or dismisses a conviction based on the Penal Code 

section, it means, for example, that the convicted subject has satisfactorily fulfilled 

probation and has applied to the court to set aside and dismiss the plea, it does not mean 

the subject was never convicted of a crime.

“After review of the criminal record transcript, the Department may grant an 

exception from disqualification for license, employment, or presence in the home 

pursuant to Section 89219.” 

Thereafter followed lengthy debate about the significance of the manual and 

whether it applied to a home being evaluated for a guardianship, and what impact the 

expungement had on José’s conviction. 

Counsel for Teresa represented that José had convictions for violations of Penal 

Code section 272 (contributing to the delinquency of a minor), Health and Safety Code 

section 11352 (transporting or selling a controlled substance), and Vehicle Code section 

23152 (driving under the influence). He then argued that the regulations set forth in the 

manual did not apply to guardianships, and if they did an exemption should have been 

granted. He contended that with the expungement, Teresa’s home should now qualify for 

placement. 

Counsel for the C.’s noted that according to the manual, Penal Code section 272 

for contributing to the delinquency of a minor was listed as one of the nonexemptible 

crimes. Supervising social worker Julie Cain agreed: “A foster home or a relative or a 

nonrelated extended family member who is approved through the Department is certified 

as a licensed home. [¶] The background is the same, so as long as this child is a 

dependent of the court, under the court’s jurisdiction and placed with the Department for 

placement, we cannot place in [Teresa’s] home. [¶] That is a nonexemptable [sic] crime 

under background. Doesn’t matter if it was a tribally-approved home, the background is 

the same. We cannot place there.” 

Teresa’s attorney responded that the manual was simply a departmental policy that 

did “not have the effect of a force of rule of law.” Counsel for the Department countered 
21

that the manual was a state regulation adopted by the State Department of Social Services 

and it controlled all placements by the Department. 

After further argument, the court stated, “Well, in any event, we still have some 

major outstanding issues here. And based upon what we’ve just been handed here 

concerning Department of Social Services rules and what they are operating under, we

certainly can’t proceed having in mind that the outcome of this matter might be 

placement with grandma. [¶] And so I’d like to give everyone an opportunity. 

Mr. Davies [counsel for Teresa], if you want to research and brief that and present your 

position on that, and perhaps then the Department could also get some authority to back 

up your interpretation of the reading of this matter, and those are—that’s the rules that 

you work with, and those are set forth in the—in the Department of Social Services 

manual.”7

Social worker Friedrich then returned to the stand. She testified that in December 

2011, the Department did reach out to Beatrice to ask if she was a placement option, but 

she declined. She subsequently approached the Department in April 2012 about 

placement, but an interstate assessment would have taken months, and the Department 

decided not to pursue it because it did not believe there was a reason to remove Autumn

from her current placement. When asked why she did not originally pursue placement 

but now wanted custody, Beatrice explained that she previously believed Patricia was 

going to get Autumn back. 

Friedrich also testified that a couple of weeks prior to the hearing, Teresa advised 

her that Patricia had signed Indian custodian designation forms, but Friedrich was never 

given a copy of the form and did not know when it had been presented. 

Adoption specialist Boylan testified that she had interviewed Teresa and José

regarding their request for placement of Autumn, but she was aware José had a 

nonexemptible criminal conviction. Boylan also confirmed that Beatrice submitted a 

placement request in April 2012. She spoke with her on June 1, inquiring why she was 

 

7

There is no indication in the record this briefing ever took place.
22

coming forward at such a late date. Beatrice responded that she had previously believed 

Teresa would be taking custody of Autumn, and she came forward when she learned that 

José’s criminal history would preclude that placement. 

Boylan testified that she had also met with the C.’s, who had been interested in an 

adoption since May 2010. In her adoption assessment, Boylan had recommended them 

as the adoptive parents for Autumn She had observed Autumn with the C.’s and found 

her to be very comfortable and stable in the home. The C.’s were her psychological 

parents, and she appeared very well adjusted, happy, and loved. According to Boylan, 

the Department first considered current caretakers, and since Autumn was stable and 

doing well with them and they did not want to disrupt her, it did not consider other 

placements. She believed the placement was ICWA-compliant because the statute

specified a family member as the first preference, not requiring that it be a Native family. 

According to Boylan, the Chickasaw Nation initially agreed with the adoptive 

placement with the C.’s. In May 2012, however, the tribe conveyed a preference that 

Autumn be placed with a closer relative and asked the Department to complete an 

assessment of Beatrice. Despite this request, Boylan did not change her recommendation 

because by that point, Autumn had “spent half of her lifetime in the care of the C.’s and 

ha[d] developed a relationship where she’s exhibiting an attachment to them, and I 

believe that there is a risk of detriment if we try to move her.” Boylan testified Autumn

had already experienced “quite a bit of loss in her short 16 months of life” due to having 

been in four different placements. If she were removed from the C.’s home, it “might”

compound her prior losses and interfere with her ability to create new attachments. 

As to any conflict between the C.’s and Autumn’s family, Boylan was hopeful that 

“things may settle down” when the case was concluded and “people . . . underst[oo]d 

what the reality is going to be for Autumn in the future . . . .” She had spoken with the 

C.’s about the possibility of a post adoption contact agreement, and they were not 

interested, although they expressed an intent to maintain a relationship between Autumn

and her siblings as well as her grandparents, provided the relationship improved. 
23

Supervising social worker Julie Cain testified that neither Patricia nor Teresa told 

her Patricia had signed an Indian custodian designation form. She confirmed it would 

have been a topic of discussion if the form had been presented at the time of detention. 

It was Cain’s continued recommendation that the court terminate parental rights 

and order adoption as the long-term placement for Autumn She was unaware of any way 

Teresa’s home could be approved for placement because the state regulations prevented 

exemption of José’s criminal conviction. 

Bryan did not testify, but his attorney made an offer of proof that he would testify 

his preference was for placement of Autumn with Teresa or, alternatively, Beatrice. 

Patricia took the stand, testifying first about the Indian custodian designation 

forms. According to Patricia, she filled out the first form in the presence of Bryan, 

Teresa, and a woman named Tawny Youngblood. The second form only differed in that 

she signed it after Autumn was born. She was scared because she had been using drugs 

throughout her pregnancy and was afraid the baby would be taken away from her.8 She 

had used a similar form when she gave birth to one of her sons in prison, authorizing 

Teresa to pick him up, and she intended the same thing to happen with Autumn. 

According to Patricia, when the social worker appeared at the hospital after Autumn’s 

birth, Patricia informed her she had signed the designation. The social worker 

disregarded the form and called law enforcement to remove Autumn because Patricia and 

Bryan would not give her up. Patricia did not recall providing the form to the 

Department at any other time. 

Patricia testified that after Autumn was removed from her custody, she was placed 

in a foster home about which she had concerns. One day she ran into Caleb, her former

parole officer, and he informed her that he and Amanda had a foster care license. At 

Patricia’s request, Autumn was transferred to their care in what Caleb lead Patricia to 

believe was a temporary arrangement while she completed her case plan. She only 

 

8

Patricia testified at length about her drug history, her efforts to get clean, and her 

interactions with social workers Beck and Friedrich. We largely omit these details since 

they have little bearing on the issues before us.
24

learned they were trying to adopt Autumn a month or two prior to the permanency

hearing. 

Patricia confirmed she wanted Teresa to have custody of Autumn. Despite her 

son’s recent passing and the fact that one of her other grandchildren had a learning 

disability, Teresa had the ability to parent Autumn in addition to the other six children. 

Teresa also testified, confirming that she and Patricia attempted to give the Indian 

custodian designation forms to the social worker at the hospital right after Autumn’s

birth, but the social worker refused to accept them. She did not present them to the 

Department again after Autumn was removed from Patricia’s and Bryan’s custody the 

second time because Patricia had put the forms in her trailer and Teresa did not know 

where they were. 

Like Patricia, Teresa testified that she did not know the C.’s were planning to 

adopt Autumn. It was her understanding it was a temporary placement. Teresa had filled 

out paperwork to request placement of Autumn, and she and José had added a room on to 

their house in anticipation of Autumn being placed with them. Teresa had regularly

visited with Autumn since she was detained by the Department. 

Teresa detailed what she did to involve her grandchildren in the Indian culture, 

noting that the children participated in Indian events all year long. 

Appearing by telephone, Chickasaw representative Regena Frye testified the 

Chickasaw Nation did not have a custom allowing for placement with a second cousin 

once removed, especially if a maternal grandmother was available for placement. 

According to Frye, ICWA supersedes the consideration of stability in the home and 

makes the best interest of the child the overall governing concern. And the best interest 

of the child is to follow the placement preferences of ICWA. She confirmed that the 

Chickasaw Nation’s preferred placement of Autumn was with Teresa. 

Frye acknowledged that in her December 14, 2011 report she indicated Autumn, 

who was then in the care of the C.’s at that time, was in an ICWA-compliant relative 

placement, but she was unaware that Autumn and Amanda were such distant cousins. 

She disputed that up until April 2012, the tribe was in agreement with placement with the 
25

C.’s, claiming the tribe had only agreed with placement with the C.’s if placement with 

Teresa was not possible. And, at the time of the hearing, if placement with Teresa was 

not possible, the tribe wanted Autumn placed with Beatrice. 

Amanda, the prospective adoptive mother, was the last to testify. 

According to Amanda, Autumn was placed in her home on October 15, 2011, with the 

consent of all parties. Autumn referred to her and her husband as “Mom” and “Daddy,” 

and was emotionally bonded to them. Amanda represented that they were “[a]bsolutely” 

willing to maintain post adoption contact with Autumn’s siblings and other family 

members. She was also willing to have Autumn participate in Native American 

activities. Amanda, whose adoptive father was an enrolled member of the Yurok tribe, 

had three teenage children, two of whom had been involved in Yurok programs. There 

were also a number of other relatives on Amanda’s side who were Native American. 

At the conclusion of the third day of testimony, the court took the matter under 

submission.

The Court’s Written Order

On September 4, 2012, the court issued its written order on all three matters, first 

addressing Teresa’s request to be designated as a de facto parent. Despite having orally 

granted the request at the hearing, the court denied it, indicating it had previously denied

a de facto parent request by Teresa and she had not presented any new evidence. 

As to Patricia’s section 388 motion, the court noted it was based on her

representation that she had made significant changes in her life and was aggressively 

pursuing her own program of sober and responsible living, but she had relapsed

subsequent to filing the motion. Accordingly, citing the active efforts provided by the 

Department, as well as Patricia’s failure to provide proof of changed circumstances, the 

court denied her request, reaffirming its previous order terminating services. 

Turning last to the issue of permanency, the court remarked that Patricia had seven 

children, six of whom were subject to a probate guardianship with Teresa. She was never 

married to any of the multiple fathers, nor was she very active in raising her children, 

having admittedly been addicted to methamphetamine since she was at least 25 years old. 
26

Bryan had a long record of contact with law enforcement and was incarcerated on a 

domestic violence charge at the time of the hearing. He was likewise an admitted meth 

addict and had failed at all rehabilitation efforts. Given the parents’ failure to develop the 

basic ability to successfully parent Autumn, combined with their history of substance 

abuse and failed rehabilitation efforts, the court found beyond a reasonable doubt that 

Autumn would suffer serious physical or emotional damage if her parents retained 

custody of her. It therefore terminated parental rights of both parents. 

The court next addressed the permanent plan for Autumn. After outlining the 

testimony presented at the hearing, the court began with a discussion of 25 U.S.C. section 

1915, which provides that “In any adoptive placement of an Indian child under State law, 

a preference shall be given, in the absence of good cause to the contrary, to a placement 

with (1) a member of the child’s extended family; (2) other members of the Indian child’s 

tribe; or (3) other Indian families.” According to the court, the phrase “good cause” has 

been interpreted to give state courts flexibility in determining the placement of an Indian 

child, and the child’s best interest, which is the primary concern, may override a tribal or 

family interest. Citing testimony by “a number of involved persons who have experience 

in such matters . . . express[ing] concern for the psychological impact that Autumn might 

sustain by being removed from her loving, safe and secure relationship with the [C.]

family,” the court ordered adoption as the permanent plan. 

Timely notices of appeal by both parents followed. 

II. INDIAN CHILD WELFARE ACT

The purposes of ICWA, 25 U.S.C. § 1901 et seq., have been discussed ad nauseum 

since its 1978 enactment. (See, e.g., Adoptive Couple v. Baby Girl (2013) 133 S.Ct. 2552 

2557; Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32; 

Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 253; In re Desiree F. (2000) 

83 Cal.App.4th 460, 469; In re Alexandria Y. (1996) 45 Cal.App.4th 1483, 1488–1490.)

Despite extensive case law and many other writings on the subject, dependency courts 

and social services departments continue to ignore the dictates of the act, often failing to 

provide proper notice of a dependency proceeding involving an Indian child (see, e.g., In 
27

re A.G. (2012) 204 Cal.App.4th 1390, 1396–1397) and, in other instances, disregarding 

the substantive mandates of the law. (See, e.g., In re Jullian B. (2000) 82 Cal.App.4th 

1337, 1349–1351.) In light of these ongoing failings, we take this opportunity to, once 

again, articulate the genesis and purposes of ICWA with the hope that the mandates of 

the act will finally be taken to heart. 

ICWA was “the product of rising concern in the mid-1970’s over the 

consequences to Indian children, Indian families, and Indian tribes of abusive child 

welfare practices that resulted in the separation of large numbers of Indian children from 

their families and tribes through adoption or foster care placement, usually in non-Indian 

homes.” (Mississippi Choctaw Indian Band v. Holyfield, supra, 490 U.S. at p. 32; see 

also Adoptive Couple v. Baby Girl, supra, 133 S.Ct. at p. 2557.) As Calvin Isaac, tribal 

chief of the Mississippi Band of Choctaw Indians, testified before the United States

Senate: “ ‘One of the most serious failings of the present system is that Indian children 

are removed from the custody of their natural parents by nontribal government authorities 

who have no basis for intelligently evaluating the cultural and social premises underlying 

Indian home life and childrearing. Many of the individuals who decide the fate of our 

children are at best ignorant of our cultural values, and at worst contemptful of the Indian 

way and convinced that removal, usually to a non-Indian household or institution, can 

only benefit an Indian child.’ ” (Mississippi Band of Choctaw Indians v. Holyfield, 

supra, 490 U.S. at pp. 34–35, quoting the hearings on Sen. Bill No. 1214 before the 

Subcom. on Indian Affairs and Public Lands of the House Com. on Interior and Insular 

Affairs, 95th Cong., 2d Sess. (1978) at pp. 191–192.)

Chief Isaac’s sentiments were echoed in the Congressional findings set forth in the 

first section of ICWA: 

“(3) that there is no resource that is more vital to the continued existence and 

integrity of Indian tribes than their children and that the United States has a direct 

interest, as trustee, in protecting Indian children who are members of or are eligible for 

membership in an Indian tribe; 
28

“(4) that an alarmingly high percentage of Indian families are broken up by the 

removal, often unwarranted, of their children from them by nontribal public and private 

agencies and that an alarmingly high percentage of such children are placed in non-Indian 

foster and adoptive homes and institutions; 

“(5) that the States, exercising their recognized jurisdiction over Indian child 

custody proceedings through administrative and judicial bodies, have often failed to 

recognize the essential tribal relations of Indian people and the cultural and social 

standards prevailing in Indian communities and families.” (25 U.S.C. § 1901.)

In the second section of ICWA, Congress declared it a national policy “to protect 

the best interests of Indian children and to promote the stability and security of Indian 

tribes and families by the establishment of minimum Federal standards for the removal of 

Indian children from their families and the placement of such children in foster or 

adoptive homes which will reflect the unique values of Indian culture, and by providing 

for assistance to Indian tribes in the operation of child and family service programs.” 

(25 U.S.C. § 1902.)

Consistent with this policy, ICWA establishes procedural and substantive 

standards governing the removal of Indian children from their families. (In re W.B. 

(2012) 55 Cal.4th 30, 40; In re H.A. (2002) 103 Cal.App.4th 1206, 1210; In re Alicia S. 

(1998) 65 Cal.App.4th 79, 81.) Our Supreme Court recently described these standards as 

follows:

“When applicable, ICWA imposes three types of requirements: notice, procedural 

rules, and enforcement. [Citation.] First, if the court knows or has reason to know that 

an ‘ “Indian child” ’ is involved in a ‘ “child custody proceeding,” ’ as those terms are 

defined in the Act [citation], the social services agency must send notice to the child’s 

parent, Indian custodian, and tribe by registered mail, with return receipt requested. 

[Citation.] If the identity or location of the tribe cannot be determined, notice must be 

sent to the Bureau of Indian Affairs (BIA). [Citation.] No hearing on foster care 

placement or termination of parental rights may be held until at least 10 days after the 

tribe or BIA has received notice. [Citation.]
29

“Next, after notice has been given, the child’s tribe has ‘a right to intervene at any 

point in the proceeding.’ [Citation.] ‘At the heart of the ICWA are its provisions 

concerning jurisdiction over Indian child custody proceedings. . . . [I]n the case of 

children not domiciled on the reservation: on petition of either parent or the tribe, 

state-court proceedings for foster care placement or termination of parental rights are to 

be transferred to the tribal court, except in cases of “good cause,” objection by either 

parent, or declination of jurisdiction by the tribal court.’ [Citation.] If the tribal court 

does not assume jurisdiction, ICWA imposes various procedural and substantive 

requirements on the state court proceedings. Indigent parents or Indian custodians have 

the right to court-appointed counsel. [Citation.] Before the court can place an Indian 

child in foster care or terminate parental rights, it must find ‘that active efforts have been 

made to provide remedial services and rehabilitative programs designed to prevent the 

breakup of the Indian family and that these efforts have proved unsuccessful.’ [Citation.] 

A foster care placement also requires a finding, by clear and convincing evidence, based 

on testimony from ‘qualified expert witnesses,’ that ‘continued custody of the child by 

the parent . . . is likely to result in serious emotional or physical damage to the child.’ 

[Citation.] Before a termination of parental rights may occur, likelihood of harm must be 

proven beyond a reasonable doubt. [Citation.] Once the appropriate showing is made, 

ICWA establishes rules for the placement of an Indian child outside the home. ‘The most 

important substantive requirement imposed on state courts is that of § 1915(a), which, 

absent “good cause” to the contrary, mandates that adoptive placements be made 

preferentially with (1) members of the child’s extended family, (2) other members of the 

same tribe, or (3) other Indian families.’ [Citation.] 

“Finally, an enforcement provision offers recourse if an Indian child has been 

removed from parental custody in violation of ICWA. Upon a petition from the parent or 

the child’s tribe to ‘any court of competent jurisdiction,’ a foster care placement or 

termination of parental rights will be invalidated if the action was conducted in violation 

of ICWA.” (In re W.B., supra, 55 Cal.4th at p. 49.)
30

The year following the enactment of ICWA, the BIA enacted guidelines for state 

courts concerning the implementation of ICWA. (Guidelines for State Courts; Indian 

Child Custody Proceedings, 44 Fed. Reg. No. 228, p. 67584 (Nov. 26, 1979) (BIA 

Guidelines).) According to the BIA 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 guidelines shall be resolved in favor of the 

result that is most consistent with these preferences.” (Id., p. 67586.)

Despite the dictates of ICWA, as supplemented by the BIA Guidelines, application 

of ICWA’s provisions was often inconsistent and perfunctory in California. (California 

Judges Benchguide: The Indian Child Welfare Act (2010) p. 7; see also Sen. Judiciary 

Com. Analysis of Sen. Bill No. 678 (2005–2006 Reg. Sess.), as amended Aug. 22, 2005, 

p. 6. [“[A]lthough ICWA was enacted more than 25 years ago, state court and county 

agencies in California continue to violate not only the spirit and intent of ICWA, but also 

its express provisions.”].) As a result, in 2006, the California Legislature adopted Senate 

Bill 678 (SB 678), which incorporated ICWA’s requirements into California statutory 

law, revising several provisions of the Family, Probate, and Welfare and Institutions 

Codes. (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 678 (2005–2006 Reg. 

Sess.) as amended June 14, 2006; 2006 Stats., Ch. 838, § 1.) According to the Assembly

Judiciary Committee, the goal of SB 678 was to ensure compliance with ICWA 

requirements in order to foster Indian children’s connection with their tribal heritage. 

(Ibid.) And per the Senate Rules Committee, the bill “revises and recasts” provisions of 

state law “by codifying into state law provisions of [ICWA], [BIA] Guidelines for State 

Courts, and state Rules of Court” and “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. Analysis of Sen. Bill No. 678 (2005–2006 Reg. 

Sess.) as amended Aug. 22, 2006, p. 1.)
31

Among many other provisions, SB 678 added section 224 to the Welfare and 

Institutions Code, setting forth the following Legislative findings and declarations: 

“(a)(1) There is no resource that is more vital to the continued existence and 

integrity of Indian tribes than their children, and the State of California has an interest in 

protecting Indian children who are members of, or are eligible for membership in, an 

Indian tribe. The state is committed to protecting the essential tribal relations and best 

interest of an Indian child by promoting practices, in accordance with the Indian Child 

Welfare Act (25 U.S.C. Sec. 1901 et seq.) and other applicable law, designed to prevent 

the child’s involuntary out-of-home placement and, whenever that placement is necessary 

or ordered, by placing the child, whenever possible, in a placement that reflects the 

unique values of the child’s tribal culture and is best able to assist the child in 

establishing, developing, and maintaining a political, cultural, and social relationship with 

the child’s tribe and tribal community.

“(2) It 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.

“(b) In all Indian child custody proceedings, as defined in the federal Indian Child 

Welfare Act the court shall consider all of the findings contained in subdivision (a), 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.” 

Senate Bill 678 also added provisions to the Welfare and Institutions Code that 

codified ICWA’s procedural and substantive standards into California law. Those that 

are relevant to the issues before us will be addressed in detail below.

With that framework in mind, we turn to the claimed errors before us. 
32

III. SUMMARY OF ARGUMENTS9

Patricia and Bryan challenge the order terminating their parental rights to Autumn

on five separate grounds. They are, in the order we will address them, as follows:

First, and most fundamentally, the parents contend the Department mishandled the 

request for exemption of José’s criminal conviction on multiple levels. As a preliminary 

matter, they claim the Department did not present any competent evidence José had a 

nonexemptible conviction. In the absence of such evidence, they submit, the court 

abused its discretion in dismissing Teresa as a viable placement option. Alternatively, 

they contend the Department misconstrued the applicable law because, under two 

different statutes, José’s alleged offense was in fact exemptible. Finally, they contend it

erred by failing to conduct a meaningful evaluation of the exemption request, further 

claiming that if the Department had in fact done so, it would have been an abuse of 

discretion to deny it. 

Second, the parents argue that the court lacked good cause to deviate from the 

ICWA placement preferences with which it was obligated to comply. Additionally, they 

argue the Department failed to make active efforts to comply with the placement 

preferences.

Third, they contend the juvenile court erred in failing to apply one of two 

exceptions to termination of parental rights. The first prohibits termination of parental 

rights where it would result in substantial interference with a child’s sibling relationship. 

(§ 366.26, subd. (c)(1)(B)(v).) The second applies where, in the instance of an Indian 

child, termination would substantially interfere with the child’s connection to his or her 

tribal community or the child’s tribe had identified another permanent living 

arrangement, such as a guardianship, for the child. (Id., subd. (c)(1)(B)(iv).)

Fourth, they contend the Department mishandled the Indian custodian designation 

forms signed by Patricia and Teresa. Their arguments pertaining to this issue are 

threefold. First, they claim that pursuant to the forms, Teresa was Autumn’s rightful 

 

9

Patricia and Bryan both join in the other’s opening brief. As such, we treat each 

argument is if it were raised by both parents. 
33

custodian at the hospital, and the Department had no grounds for removing the infant 

from her care. Alternatively, they contend that if the Department had cause to remove 

her from Teresa’s custody, then Teresa was entitled to reunification services. As it was, 

she never even received the notice of the dependency proceedings that she was entitled to 

as Autumn’s Indian custodian, and she suffered prejudice as a result. Finally, they 

contend the juvenile court, once made aware of the forms, should have declined 

jurisdiction over the petition and returned Autumn to Teresa’s care. 

Fifth, they contend the court erred by applying the existing Indian family doctrine, 

a doctrine that has been abrogated in California. 

Patricia and Bryan seek reversal of the order terminating their parental rights and 

remand with instructions that José’s criminal conviction be exempted and that Autumn be 

placed with her grandparents under a legal guardianship. Alternatively, they request 

placement of Autumn with Beatrice if the Department determines, upon proper 

evaluation, that José’s conviction is nonexemptible. 

IV. DISCUSSION

A. The Department Misconstrued the Applicable Statutes When It 

Concluded José’s Conviction Was Nonexemptible and Thus Abused Its 

Discretion In Denying the Exemption Request

Introduction to the Issue

One of the most critical issues below—if not the most critical—was the request for 

an exemption of José’s alleged Penal Code section 272 conviction. With an exemption, 

Autumn could be placed in a home with her six siblings, where she would be connected 

to her Chickasaw heritage and taken care of by her doting grandmother—in other words, 

an ideal placement that complied with ICWA’s placement preferences. Without an 

exemption, the Department could not place Autumn there. The Department never 

evaluated José’s exemption request on the merits, however, instead concluding his 

offense was nonexemptible and thus precluded placement. This conclusion was wrong as 

a matter of law.
34

Applicable Statutory Provisions

Prior to placing a detained child in the home of a relative or other person who is 

not a licensed foster parent, the Department must conduct a criminal records check on all 

adults living at the residence. (§ 361.4, subd. (b)(1).) If the criminal records check 

indicates the person has no criminal record, the home may be considered for placement. 

(§ 361.4, subd. (d)(1).) If, however, the person has been convicted of a crime that would 

preclude licensure as a foster home, the child cannot be placed in the home, unless an 

exemption is granted. (Id., subd. (d)(2).)

Convictions generally fall into two categories: exemptible and nonexemptible. 

(Health & Saf. Code, § 1522, subd. (g)(1); Cal. Code Regs., tit. 22, § 80019.1; In re 

Esperanza C. (2008) 165 Cal.App.4th 1042, 1056.) If an offense is exemptible, a 

designated county agency has the authority to grant an exemption where there is 

“substantial and convincing evidence to support a reasonable belief that the person with 

the criminal conviction is of such good character as to justify the placement and not 

present a risk of harm to the child . . . .”

10

 (§ 361.4, subd. (d)(2), (3)(A).) If an offense is 

nonexemptible, the child cannot be placed in that home. (Id., subd. (d)(2); Health & Saf. 

Code, § 1522, subd. (g)(1)(A)(i); In re Esperanza C., supra, 165 Cal.App.4th at p. 1057.)

Health and Safety Code section 1522, subdivision (g)(1)(A)(i), identifies the 

offenses that are designated as nonexemptible, a list that includes offenses specified in 

Penal Code section 290, subdivision (c).

11

 Section 290 is the Sex Offender Registration 

 

10 Initially, the State Department of Social Services had the sole authority to grant 

exemptions. (In re Jullian B., supra, 82 Cal.App.4th at p. 1350.) In 2001, however, the 

Legislature amended section 361.4, subdivision (d) to allow a county agency to grant 

exemptions if the Director of Social Services has authorized it to do so. (§ 361.4, subd. 

(d)(3)(A), as amended by Stats. 2001, ch. 445, § 1.)

11 The enumerated offenses are as follows: “An offense specified in Section 220, 

243.4, or 264.1, subdivision (a) of Section 273a or, prior to January 1, 1994, paragraph 

(1) of Section 273a, Section 273d, 288, or 289, subdivision (c) of Section 290, or Section 

368 of the Penal Code, or was a conviction of another crime against an individual 

specified in subdivision (c) of Section 667.5 of the Penal Code.” (Health & Saf. Code, 

§ 1522, subd. (g)(1)(A)(i).)
35

Act and identifies offenses requiring lifetime registration in California as a sex offender. 

(Pen. Code, § 290, subd. (b), (c).) Such offenses include “any offense involving lewd or 

lascivious conduct under Section 272.” (Id., subd. (c).)

It has been said that the process of determining whether an offense is 

nonexemptible “presents a high danger of error.” (Doe v. Saenz (2006) 140 Cal.App.4th 

960, 997.) “This danger of error is enhanced due to the complexity of the statutory 

scheme identifying more than 50 non-exemptible offenses, some of which are nonexemptible only under specified conditions.” (Ibid.)

Circumstances Surrounding José’s Conviction

On February 23, 2012, counsel for Teresa sent a letter to the Department appealing 

its February 15, 2012 denial of a request for an exemption for José’s conviction. That 

letter described the circumstances surrounding José’s arrest as follows:

José, a 19-year-old high school senior, and Teresa, a 14-year-old eighth grader,

met in Crescent City in 1976, when José was an exchange student visiting from Mexico. 

They met at a school dance and embarked upon a relationship. A relationship between an 

older man and a younger girl was not uncommon in José’s native country at the time, and 

their relationship had the full support of Teresa’s parents. 

When José and Teresa had been dating for just under a year and were engaged to 

be married, they were caught together—fully clothed—at a motel. Both were arrested. 

According to Teresa’s attorney, José was convicted “of the underlying offense” and was 

prohibited from contacting Teresa for one year. 

José moved to San Jose, and Teresa continued on to high school. After the year 

passed, José contacted Teresa through his cousin, providing a phone number and 

indicating he would like to hear from her if she was so inclined. Teresa quickly 

contacted José and then traveled to San José to visit him, and within days they advised 

their parents they wanted to get married. Teresa’s father not only consented, but gave the 

couple money so they could travel to Reno to get married, which they did on July 22, 

1978. They later returned to Crescent City, where they still lived at the time of the 

dependency proceeding 33 years later. 
36

While the record does not contain any evidence pertaining to José’s conviction—

no arrest record, no abstract of judgment, nothing—we can surmise from the parties’ 

briefs and passing references in the reporter’s transcript that he was convicted of 

contributing to the delinquency of a minor in violation of Penal Code section 272.12

The Department Erred in Determining That José’s Conviction Was 

Nonexemptible

Penal Code section 272 makes it a misdemeanor to commit any act or fail to 

perform a duty that encourages a minor to commit an unlawful act or violate a court 

order, in other words, to contribute to the delinquency of a minor. Lewd and lascivious 

conduct is not an element of a section 272 offense. For a section 272 offense to be 

nonexemptible in the dependency context, however, it must have involved lewd and 

lascivious conduct. (Pen. Code, § 290, subd. (c); In re Esperanza C., supra, 

165 Cal.App.4th at p. 1057 [section 272 conviction may be exemptible or nonexemptible, 

depending on the conduct for which the person was convicted].) Here, there was no 

evidence that José’s offense involved lewd and lascivious conduct, nor does anything in 

the record suggest the Department found evidence of such conduct. Rather, all 

indications in the record suggest the offense was deemed nonexemptible simply because 

it was a violation of section 272. 

The court in In re Esperanza C., supra, 165 Cal.App.4th at p. 1061, directly 

addressed this issue:

“The statutory scheme governing criminal records exemptions does not permit the 

agency to infer that an applicant’s Penal Code section 272 conviction involved lewd and 

lascivious behavior. An applicant is not required to prove that his or her section 272 

conviction is not a nonexemptible sex offense. (Health & Saf. Code, § 1522, subd. (g); 

see generally Gresher v. Anderson [(2005)] 127 Cal.App.4th [88], 105–110 [discussing 

 

12 It appears some quantum of evidence of José’s criminal history was presented to 

the court. At the permanency hearing, the court asked to “look at the alleged 

expungement document,” and subsequently referred to “the conviction set forth in those 

three files we looked at . . . .” 
37

applicant’s due process rights in the criminal exemption process].) Either the agency has 

a valid record that the applicant was convicted, by proof beyond a reasonable doubt, of a 

sex offense (or other nonexemptible offense), or it does not. Further, an applicant is not 

required to prove the nonexistence of an offense to show good moral character. (§ 361.4, 

subd. (d)(2); Cal. Code Regs., tit. 22, § 80019.1, subds. (e), (f); see Gresher v. Anderson, 

supra, at pp. 97, 113.) [¶] Unless the Agency has a record that [the applicant] was 

convicted of lewd and lascivious behavior under Penal Code section 272, its 

classification of the section 272 conviction as a nonexemptible offense is erroneous as a 

matter of law. A decision that rests on an error of law constitutes an abuse of discretion.

[Citation.].” 

This is the Department’s response to this argument: “There was adequate 

evidence in the record, in addition to the judge personally viewing the conviction files, to 

determine that the conviction was a [Penal Code section] 272 conviction which involved 

‘lewd or lascivious’ conduct.” And it goes on to argue that José’s conviction was for 

“having sex with a minor,” which, it contends, “fits the definition of a ‘lewd or lascivious 

act’ under [Penal Code section] 272.” In fact, José was not convicted of “having sex with 

a minor,” which would have been a Penal Code section 261.5 violation; he was convicted 

of contributing to the delinquency of a minor, and that offense does not necessarily 

include lewd or lascivious conduct. And as to the Department’s suggestion that there was 

sufficient evidence of lewd or lascivious conduct because the trial court personally 

reviewed the files, nothing suggests that the court even knew lewd or lascivious conduct 

was required to render the Penal Code section 272 conviction nonexemptible. 

It follows, then, that unless the Department had a record that José was convicted of

lewd or lascivious behavior under Penal Code section 272—and evidence of that 

certainly does not exist in the record—its classification of the section 272 conviction as 

nonexemptible was erroneous as a matter of law. As such, its decision regarding José’s 

request for an exemption constituted an abuse of discretion. (In re Esperanza C., supra, 

165 Cal.App.4th at p. 1061.)
38

But even if we were to accept the Department’s claim that there was sufficient 

evidence of lewd and lascivious conduct, we would still conclude the Department erred in

deeming José’s offense nonexemptible. As noted above, certain convictions are 

considered nonexemptible and will prevent placement of a dependent child in that home. 

(§ 361.4, subd. (d)(2); Health & Saf. Code, § 1522, subd. (g)(1)(A)(i)).) According to 

Patricia and Bryan, however, the Welfare and Institutions Code contains a provision that, 

in the case of an Indian child, allows the Department to grant an exemption of an offense 

that is classified as nonexemptible. That section is subdivision (f) of section 361.4, 

which states that upon request from an Indian tribe, the Department of Social Services (or 

an authorized county agency) “shall evaluate an exemption request, if needed, to allow 

placement into an Indian home that the tribe has designated for placement under the 

federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) that would otherwise be 

barred under this section.” (Italics added.) We agree with the parents’ interpretation of 

the statute.

The rules governing statutory construction are well established. “Our goal is to 

determine the Legislature’s intent and adopt a construction that best effectuates the 

purpose of the law. [Citations.] We begin with the statutory language because it 

generally provides the most reliable indication of legislative intent. [Citations.] ‘ “If the 

statutory language is unambiguous, we presume the Legislature meant what it said, and 

the plain meaning of the statute controls. [Citation.]” [Citation.] We consider extrinsic 

aids, such as legislative history, only if the statutory language is reasonably subject to 

multiple interpretations.’ ” (In re W.B., supra, 55 Cal.4th at p. 52; accord MacIsaac v. 

Waste Management Collection & Recycling, Inc. (2005) 134 Cal.App.4th 1076, 

1082-1084.) We review issues of statutory construction de novo. (Martinez v. Enterprise 

Rent-A-Car (2004) 119 Cal.App.4th 46, 52.) 

Consistent with the above guidelines, we first examine the language of section 

361.4, subdivision (f)—“that would otherwise be barred”—to ascertain whether it 

evidences an intent to allow, in the instance of an Indian child, the exemption of a 

conviction for an offense that is generally classified as nonexemptible. We must give the 
39

words their usual, ordinary, and commonsense meaning. (California Teachers Assn. v. 

Governing Bd. of Hilmar Unified School Dist. (2002) 95 Cal.App.4th 183, 191.) Doing 

so, we conclude that subdivision (f) was intended to expressly carve out an exception to 

the general prohibition against placement of a dependent child in a home with a person 

convicted of a nonexemptible offense in order to allow placement of an Indian child in an 

Indian home under the appropriate circumstances. In other words, when requested to do 

so by a tribe, it allows the Department to grant an exemption where it would otherwise be 

prohibited from doing so. We perceive no ambiguity in the language and, indeed, the 

Department suggests no other interpretation of the language. We thus presume the 

Legislature meant what it said. (Miklosy v. Regents of University of California (2008) 

44 Cal.4th 876, 888.) 

Further, a statute cannot be read in isolation, but rather must be read “ ‘ “with 

reference to the entire scheme of law of which it is a part . . . .” ’ ” (Calatayud v. State of 

California (1998) 18 Cal.4th 1057, 1065.) Here, that requires construction of the 

provision in the context of ICWA, which, as extensively detailed above, was 

implemented to prevent the breakup of the Indian family. Allowing the tribe to request 

an exemption of an otherwise nonexemptible conviction is consistent with that objective. 

And as the BIA Guidelines instruct, we must liberally construe the statute “in favor of the 

result that is consistent with” ICWA’s preferences. (BIA Guidelines, supra, p. 67586.)

The Department’s opposition to this argument says this in its entirety: 

“Appellant argues that § 361.4(f) would have allowed the Department of Social 

Services to evaluate an exemption which would otherwise be barred. However, this 

section must be interpreted in accordance with other statues [sic] and applicable law. To 

say that this statute allows a Department to waive a non-exemptible conviction in any 

case would mean there are actually no convictions that are non-exemptible. This does 

not make sense with the rest of the statutory scheme. Although the interests of Tribes in 

being able to advise on an appropriate home is great, it should not be considered to be 

greater than protecting a child from possible abuse which is the purpose of 

non-exemptible convictions. Public policy weighs against this interpretation of the law.
40

“Section 361.4(f) cannot override the non-exemptible convictions which are on the 

federal non-exemptible crimes list. Under §361.4(f) the Tribe is entitled, if it requests, to 

have the criminal record of a relative, potential caregiver evaluated. This does not 

automatically translate to the criminal record being waived. The language of the statute 

refers only to evaluate an exemption request not to grant an exemption.” We are not 

persuaded.

We begin with the Department’s assertion that “To say that this statute allows a 

Department to waive a non-exemptible conviction in any case would mean there are 

actually no convictions that are non-exemptible.” By its own terms, subdivision (f) of 

section 361.4 is limited to the instance of an Indian child, in recognition that Indian 

children are differently situated under California dependency laws due to mandates of 

ICWA. Additionally, it does not provide for mandatory exemption upon request. Rather, 

it merely creates the possibility of exemption, and the Department must still find

sufficient evidence of good character to justify the placement and not risk harm to the 

child. (§ 361.4, subd. (d)(2).)

Further, the Department’s position ignores the plain language of the statute: 

“would otherwise be barred.” In construing a statute, we must “accord significance, if 

possible, to every word, phrase and sentence in pursuance of the legislative purpose. A 

construction making some words surplusage is to be avoided.” (Kane v. Hurley (1994) 

30 Cal.App.4th 859, 862.) The Department’s interpretation renders the phrase “would 

otherwise be barred” superfluous.

Finally, as to the Department’s puzzling suggestion that the statute permits the

evaluation of an exemption request but does not authorize the granting of such a request, 

we simply note the maxim of jurisprudence that “[t]he law neither does nor requires idle 

acts.” (Civ. Code, § 3532.) 

The Department Failed to Complete a Meaningful Evaluation of the 

Exemption Request

Because the Department erroneously determined José’s conviction was 

nonexemptible, it failed to evaluate the exemption request on the merits. The parents ask 
41

that we remand with instructions that José’s criminal conviction be exempted to allow for 

placement of Autumn in her grandparents’ home. This, we cannot do. (See, e.g.,

In re M.L. (2012) 205 Cal.App.4th 210, 226; In re Esperanza C., supra, 165 Cal.App.4th 

at pp. 1062–1063.) But on remand, the Department must conduct a meaningful 

evaluation, and it cannot unreasonably deny the request, for doing so would necessarily 

frustrate the goals ICWA is intended to achieve by potentially depriving Autumn of a 

placement that protects her Indian heritage. (In re Jullian B., supra, 82 Cal.App.4th at 

p. 1350.) 

The Department suggests that even if it had conducted a proper evaluation, it 

could “easily [have] conclude[d] that the grandfather was not of such good character as to 

justify the placement” because he also had “DUI offenses and an offense dealing with 

being in the car with a person that had drugs.” While this issue is not currently before us, 

given what we know from the record, we would be hard pressed to agree. Nevertheless, 

if the Department denies the exemption, “the record must establish that [it] exercised 

sound discretion in denying the waiver and must set forth the reasons therefor.” (In re 

Jullian B., supra, 82 Cal.App.4th at p. 1350.)

In light of our ruling on this issue, we cannot address the parents’ alternative 

arguments that the court’s finding of good cause to deviate from the ICWA placement 

preferences was unsupported by substantial evidence and that the court erred in 

terminating parental rights rather than ordering a guardianship consistent with the Indian 

child exception to termination. This is so because in reaching its decision regarding a 

permanent plan for Autumn, the juvenile court was operating under the assumption that 

the grandparents’ home was not available for placement, which assumption was the direct 

result of error. As such, the court did not have a complete picture. 

We cannot speculate what the court would have done had the Department 

correctly interpreted the law and conducted the requisite investigation. As we noted ante, 

however, the grandparents’ home appeared to be an ideal placement. Multiple educators 

and members of the community attested to the commitment with which Teresa was 

raising her six other grandchildren. She was thoroughly dedicated to these children and, 
42

by all indications, was doing an exemplary job. Further, she zealously fought for 

placement of Autumn, attending most, if not all, of the hearings in the dependency 

proceeding and maintaining weekly visits with Autumn throughout. Finally, placement 

in the home would mean that Autumn would be in daily contact with her siblings and 

immersed in her Chickasaw heritage.

We close the discussion on this issue by quoting a paragraph of vigorous criticism

made by amicus curiae Yurok Tribe: “Social Workers, Judges and Attorneys in Del 

Norte County still view the ICWA through the lens of white, middle-class values and 

value judgments. Children are routinely placed in non-tribal homes with little or no 

effort to locate viable Indian family members. After the children have resided with their 

non-tribal caretakers for a few months, Anglo values that support the concept of bonding 

and the judicially created doctrine of De Facto Parents are used against those Indian 

family members that do come forward. Tribes—which may be thousands of miles 

separated from local courts—and Indian families that are often poor and poorly educated, 

receive less than adequate representation in State courts. [¶] It is the position of the 

Amicus that In re Autumn is one such case. The Chickasaw Nation is located in Ada, 

[Oklahoma,] more than 2,000 miles from Crescent City, [California]. The maternal 

Grandmother appeared at every single court hearing and requested placement and 

visitation on numerous occasions but was never really heard. The non-Indian De Facto 

Parents did nothing wrong, but they were blessed with the advantage of a 

judicially-created Party status merely because the Juvenile Court refused to place 

Autumn with her Grandmother. Then, the Juvenile Court relied upon bonding with those 

caretakers, who had no previous relationship with these children, as the ultimate reason 

why parental rights should and must be terminated.” While we cannot endorse all that is 

in that paragraph, we certainly can endorse the complimentary characterization of Teresa.

Along those same lines, it has been said that “[e]motional bonding between a child 

and his or her placement which occurs as a result of a local or state agency’s failure to 

comply with the ICWA does not constitute good cause for deviating from the ICWA’s 

placement preferences, although considerable trauma to the child may occur as a result.” 
43

(California Judges Benchguide: The Indian Child Welfare Act, supra, at p. 48, citing 

In re Desiree F., supra, 83 Cal.App.4th at p. 476; Mississippi Band of Choctaw Indians v. 

Holyfield, supra, 409 U.S. at pp. 53–54.)

B. The Department’s and the Court’s Handling Of the Indian Custodian 

Designation Forms Does Not Mandate Reversal

While we cannot, as noted, address two of the arguments made by Patricia and 

Bryan, we can address their fourth and fifth claims. As to the Indian custodian 

designation forms, they claim that when Autumn was born, Teresa immediately became 

her custodian by virtue of the tribal custodian forms Patricia and Teresa executed. As 

such, they reason, Autumn was immediately transferred to Teresa’s custody upon her 

birth, and the Department had no basis for detaining her from Teresa. Alternatively, they 

submit that if Autumn was in fact properly detained from Teresa, the Department was 

obligated to provide her notice of the dependency proceedings and reunification services. 

Finally, they contend the juvenile court, upon learning of the forms, was obligated to 

decline jurisdiction over the petition and return Autumn to Teresa’s care. These

arguments fail for multiple reasons.

First, Autumn was never in Teresa’s custody. “Indian custodian” is defined as 

“any Indian person who has legal custody of an Indian child under tribal law or custom or 

under State law or to whom temporary physical care, custody, and control has been 

transferred by the parent of such child.” (25 U.S.C., § 1903(6).) Here, there was no 

evidence Patricia ever turned custody of Autumn over to Teresa. From the outset of the 

dependency proceeding up until the section 366.26 hearing, Patricia acted as if Autumn

had been removed from her custody. Even Teresa testified at the June 25, 2012 hearing 

on her de facto parent status request, “She was never in my custody.” 

Second, assuming arguendo that the forms should have operated to transfer 

Autumn to Teresa’s custody immediately upon her birth, Patricia implicitly revoked that 

custody arrangement when Autumn was returned to her care a week after the child’s 

birth. 
44

Third, Bryan did not sign either of the forms. We question the validity of a form 

that purports to give custody of a child to someone else when the form was not executed 

by both parents, especially where, as here, there was no dispute about paternity. (See In 

re G.L. (2009) 177 Cal.App.4th 683, 695 [allowing one parent to defeat the other parent’s 

revocation of an Indian custodian designation “would have the unintended effect of 

allowing one parent to usurp the rights of the other parent with respect to an Indian 

child’s temporary custody”].)

Fourth, the forms designated Teresa as Autumn’s Indian custodian from February 

23, 2011 to February 2012. The arrangement therefore terminated—assuming it was ever 

operative—in the mist of the dependency proceeding, and well before June 2012, when 

the forms were first brought to the court’s attention.

Fifth, the parents argue that as the Indian custodian, Teresa should have received 

notice of the dependency proceedings, as mandated by ICWA. A notice violation under 

ICWA is subject to harmless error analysis. (In re Brooke C. (2005) 127 Cal.App.4th 

377, 384–385.) “An appellant seeking reversal for lack of proper ICWA notice must 

show a reasonable probability that he or she would have obtained a more favorable result

in the absence of the error.” (In re G.L., supra, 177 Cal.App.4th at p. 696.) Teresa can 

make no such showing, since she was aware of the proceedings, as evidenced by the fact 

that she attended most, if not all, of the hearings in the proceeding.

Sixth, an Indian custodian has a right to intervene at any time. (25 U.S.C. 

§ 1911(c); § 224.4; Cal. Rules of Court, rule 5.482(e).) If Teresa believed she was in fact 

Autumn’s proper Indian custodian, she could have—and should have—moved to 

intervene. She did not do so. 

Seventh, aside from purportedly having shown the forms to the social worker at 

the hospital immediately following Autumn’s birth, at no other time during the 

proceeding did Patricia, Teresa, or anyone else give the forms to the Department. The 

court was not made aware of the forms until at or just before the section 366.26 hearing.

By failing to bring this issue to the court’s attention, the parents forfeited it.
45

C. There Is No Evidence The Court Applied the Existing Indian Family 

Doctrine

Lastly, the parents contend that the juvenile court improperly applied the existing 

Indian family doctrine, as purportedly evidenced by questions the court asked of Teresa 

during the section 366.26 hearing. For example, it asked her how many times she had 

“sat down with [her] six grandchildren and instructed them on specific aspects of culture 

and custom?” It asked her, “What is different about your lifestyle that makes you 

different from non Indian families?” It also wanted to know “if there’s something 

different about how this family, a Chickasaw family, what lengths they’ve gone to, to 

preserve all those customs and traditions that [the expert] says are so important to 

preserving the Indian way of life.” And it was curious about “how much actual 

involvement has taken place through persons such as grandma who would know about 

those matters and pass that on to grandchildren and be passed on to Autumn as a member 

of this family.” In short, according to the parents, the court’s questions essentially asked 

Teresa “how Indian she was.” This was, they contend, “an attempt to use a ‘back-door 

approach to do exactly what the ICWA was intended to prevent: imposition of white 

middle class standards to child custody cases involving American Indian children.’ ” 

Prior to the 2006 passage of SB 678, there was a split in the California Courts of 

Appeal on the viability of an exception to application of ICWA known as the “existing 

Indian family doctrine.” (See Adoption of Hannah S. (2006) 142 Cal.App.4th 988, 995 

[identifying which districts adopted the doctrine and which rejected it.] This judiciallycreated doctrine looked for an existing and significant social or cultural connection to an 

Indian tribe or community as a prerequisite to the application of ICWA to a dependent 

child. (Ibid.)

With the passage of SB 678, however, the Legislature made clear that an Indian 

child’s best interests are served by protecting the child’s connection to his or her tribe and 

to the tribal community, “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 
46

resided or been domiciled.” (§ 224, subd. (a)(2); see also Fam. Code, § 175, subd. 

(a)(2)(A); Prob. Code, § 1459, subd. (a)(2).) There is no question that the existing Indian 

family doctrine is not viable in California. (See In re Vincent M. (2007) 150 Cal.App.4th 

1247, 1251.) And we do not understand the court’s questions of Teresa concerning her 

involvement in the Indian culture to suggest that it was applying the doctrine. 

V. DISPOSITION

We close with the observation that we are extremely cognizant of concerns for the 

well being of a dependent child anytime he or she is moved from one placement to 

another. And we do not lightly enter an order that may delay the permanency this young 

dependent child so rightfully deserves. That said, the Department and the juvenile court 

are obligated to follow the law, and that was not done here. The order terminating 

parental rights is therefore reversed. The matter is remanded to the juvenile court with 

instructions that it order the Department to evaluate José’s request for a criminal records 

exemption and to promptly report its decision to the court and parties. Should it grant the 

exemption, it shall then file a supplemental selection and implementation plan, after 

which the court shall hold a further permanency hearing in accordance with section 

366.26. Should the Department deny the exemption, the record must establish that it 

exercised sound discretion in doing so. It must also make active efforts to locate an 

appropriate placement that is ICWA-compliant.

_________________________

Richman, J.

We concur:

_________________________

Kline, P.J.

_________________________

Haerle, J.
47

Trial Court: Del Norte County Superior Court

Trial Judge: Honorable John R. Morrison

Attorney for Defendant and Appellant

Mother:

Suzanne Davidson, under appointment by 

the Court of Appeal

Attorney for Defendant and Appellant

Father:

Elysa J. Perry, under appointment by the 

Court of Appeal

Attorney for Yurok Tribe as Amicus Curiae 

in Support of Appellants:

Charles N. Henry

Attorneys for Plaintiff and Respondent: Gretchen Stuhr, County Counsel, Elizabeth 

Cable, Deputy County Counsel