Filed 8/15/14

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

In re Alexandria P., a Person Coming 

Under the Juvenile Court Law.

 B252999

 (Los Angeles County Super. Ct.

 No. CK58667)

LOS ANGELES COUNTY 

DEPARTMENT OF CHILDREN AND 

FAMILY SERVICES,

Plaintiff and Respondent,

v.

J.E.,

Defendant and Respondent;

R.P., et al., 

Objectors and Appellants;

Choctaw Tribe of Oklahoma, 

Intervener and Respondent.

APPEAL from an order of the Superior Court of Los Angeles County, Amy M. 

Pellman, Judge. Reversed and remanded with directions. 
2

Quinn Emanuel Urquhart & Sullivan, Lori Alvino McGill; Latham & Watkins, 

Pamela S. Palmer, Stephanie N. Grace, Ming M. Zhu, for Objectors and Appellants.

Covington & Burling, Mark W. Mosier, David Schraub, Richard A. Jones, for 

Professor Joan Hollinger, Northern California Association of Counsel for Children, and 

AdvoKids as amici curiae on behalf of Objectors and Appellants. 

John F. Krattli, County Counsel, Dawyn R. Harrison, Assistant County Counsel, 

and Kim Nemoy, Senior Deputy County Counsel, for Plaintiff and Respondent.

Law Offices of Joanne Willis Newton and Joanne Willis Newton, under 

appointment by the Court of Appeal, for Defendant and Respondent.

Christopher Blake, under appointment by the Court of Appeal, for minor 

Alexandria P. 

Melissa L. Middleton for Intervener and Respondent. 

___________________

This case involves the placement preferences set forth in the Indian Child Welfare 

Act (ICWA) (25 U.S.C. § 1901 et seq.).1 At issue is whether the dependency court 

properly applied the ICWA in finding that the foster parents of an Indian child failed to 

prove good cause to deviate from the ICWA’s adoptive placement preferences.

A 17-month-old Indian child was removed from the custody of her mother, who 

has a lengthy substance abuse problem and has lost custody of at least six other children, 

and her father, who has an extensive criminal history and has lost custody of one other 

child. The girl’s father is an enrolled member of an Indian tribe, and the girl is 

considered an Indian child under the ICWA. The tribe consented to the girl’s placement 

with a non-Indian foster family to facilitate efforts to reunify the girl with her father. The 

girl lived in two foster homes before she was placed with de facto parents at the age of 

two. She bonded with the family and has thrived for the past two and a half years. 

 

1 All statutory references are to 25 U.S.C., unless otherwise indicated.
3

After reunification efforts failed, the father, the tribe, and the Department of 

Children and Family Services (Department) recommended that the girl be placed in Utah 

with a non-Indian couple who are extended family of the father. De facto parents argued 

good cause existed to depart from the ICWA’s adoptive placement preferences and it was 

in the girl’s best interests to remain with de facto family. The child’s court-appointed 

counsel argued that good cause did not exist. The court ordered the girl placed with the 

extended family in Utah after finding that de facto parents had not proven by clear and 

convincing evidence that it was a certainty the child would suffer emotional harm by the 

transfer. 

De facto parents appeal from the placement order, raising constitutional challenges 

to the ICWA, which we hold they lack standing to assert. De facto parents also contend 

that the ICWA’s adoptive placement preferences do not apply when the tribe has 

consented to a child’s placement outside of the ICWA’s foster care placement 

preferences. We disagree with their interpretation of the statutory language. De facto 

parents further contend the court erroneously applied the clear and convincing standard of 

proof, rather than preponderance of the evidence, a contention we reject based upon the 

overwhelming authority on the issue. Finally, de facto parents contend the court 

erroneously interpreted the good cause exception to the ICWA’s adoptive placement 

preferences as requiring proof of a certainty that the child would suffer emotional harm if 

placed with the Utah couple, and failed to consider the bond between Alexandria and her 

foster family, the risk of detriment if that bond was broken, and Alexandria’s best 

interests. We agree with this last contention and reverse the placement order because the 

court’s error was prejudicial. 

For clarity, we set forth the parties before turning to the facts and procedural 

history. The Indian child’s name is Alexandria. De facto parents, Rusty and Summer P., 

are appellants seeking to reverse the placement order. The P.s are supported by amici

curiae Joan Hollinger, Northern California Association of Counsel for Children, and 

Advokids, which filed a joint brief in support of reversal. Alexandria argues we should 

affirm the order directing her pre-adoptive placement with Ginger and Ken R., her 
4

extended family in Utah. Alexandria’s father, the Department, and the Choctaw Nation 

of Oklahoma (tribe) have all filed briefs in support of affirmance as well. 

FACTUAL BACKGROUND

Alexandria’s Family Background

Alexandria’s mother is not Indian, has a history of substance abuse, including 

methamphetamine abuse, and lost custody of at least six other children before Alexandria 

was born. Alexandria’s father, an enrolled member of the tribe,2 has a history of 

substance abuse and an extensive criminal history. He lost custody of Alexandria’s older 

half-sister, Anna, an enrolled member of the tribe who currently lives in Los Angles with 

paternal step-grandfather, her adoptive parent. Alexandria is 1/64th Choctaw and meets 

the statutory definition of an Indian child.3 

Alexandria’s Child Welfare History

Alexandria was detained from her parents and placed with a foster family when 

she was 17 months old, based on concerns about her parents’ ability to care for her in 

light of their histories of substance abuse, child welfare referrals, and criminal activity. 

Alexandria reportedly was moved to a different foster family after suffering a black eye 

 

2 Father initially denied any Indian heritage, and the record does not contain any 

evidence he ever lived on a reservation or had any social, political, or cultural ties to the 

tribe. Alexandria’s paternal grandmother alerted the Department to father’s tribal 

membership and also reported that Alexandria’s half-sister is a registered member of the 

Choctaw tribe. 

3 The ICWA defines an Indian child as including “any unmarried person who is 

under the age of eighteen and . . . is eligible for membership in an Indian tribe and is the 

biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).) 
5

and a scrape on the side of her face.4 The P.s were Alexandria’s third foster care

placement, initially arranged in December 2011 as a “respite care” placement5that 

evolved into a long-term foster care placement. The P.s were aware that Alexandria was 

an Indian child and her placement was subject to the ICWA. 

By the time Alexandria was placed with the P.s in December 2011, her extended 

family in Utah, the R.s, were aware of dependency proceeding and had spoken to 

representatives of the tribe about their interest in adopting Alexandria. The tribe agreed 

to initial foster placement with the P.s because it was close to father at a time when he 

was working on reunification. If reunification services were terminated, the tribe 

recommended placement with the R.s in Utah.

Alexandria’s Emotional Health

Alexandria’s first months after being placed with the P.s were difficult. She was 

weepy at times, did not want to be held, and had difficulty differentiating between 

strangers and caregivers, indiscriminately calling people “mommy” or “daddy.” These 

behaviors were considered signs of a “reactive attachment, the disinhibitive type.” The 

P.s addressed Alexandria’s attachment issues with consistency and loving care. They did 

not ask the social worker for a therapy referral, understanding the issues to be ones they 

could work out on their own. After a few months, Alexandria’s behavioral issues 

resolved, and she formed a strong primary bond and attachment with the entire P. family, 

viewing the parents as her own parents and the P. children as her siblings. 

 

4 Lauren Axline, a rebuttal witness called by the P.s, was the only witness who 

testified about the transfer from Alexandria’s first foster family to her second placement. 

Department reports indicate that Alexandria’s foster placement changed twice between 

April and December 2011, but do not provide any reason for the changes in placement. 

5 The P.s agreed to care for Alexandria while her second foster family went on 

vacation.
6

On September 17, 2012, Alexandria began play therapy with Ruth Polcino, a 

therapist with United American Indian Involvement. Sessions took place weekly in the 

P. home. In a December 31, 2012 letter to the Department’s social worker Javier, 

Polcino noted Alexandria’s “happiness, playfulness, sense of safety, and positive rapport 

with her foster parents and siblings” and concluded that her consistent, loving experience 

in the foster home appears to have fostered a healthy and secure attachment. Notably, the 

letter concludes “Based on witnessing Alexandria in the [P.s’] household, and based on 

her history of repeated separation from caretakers, this therapist highly recommends that 

Alexandria be allowed to stay in touch with the [P.] family, even after she is placed with 

her Aunt [Ginger R.] in Utah. This recommendation is not intended to interfere with the 

current adoption, but rather to allow Alexandria to stay in touch with the [P.] family as 

extended family who care about her.” 

An April 3, 2013 report notes the significant advancements made by Alexandria 

during her placement with the P.s, as well as her ability to form a healthy attachment to 

new caretakers: “Alexandria’s ability to re-attach to a new caretaker is stronger because 

of the stability that the [P.] family has provided for her. The behaviors that she presented 

with initially when placed with the [P.] family were much more indicative of a possible 

attachment disorder (i.e., the indiscriminate attachment she demonstrated with strangers). 

Since then, these behaviors have been almost entirely extinguished. In their place are 

more appropriate behaviors that are evidence of a more healthy and secure attachment . . . 

.” 

Father’s Reunification Efforts

Alexandria’s father successfully complied with reunification services for more 

than six months, progressing to such an extent that he was granted unmonitored eighthour visits. By June 2012, the Department reported a substantial probability he would 

reunify with Alexandria within the next six months. Shortly thereafter, however, father’s 

emotional state deteriorated dramatically. He separated from his new wife, left 
7

California, and did not visit Alexandria after July 28, 2012. By September 2012, he had 

communicated to the Department that he no longer wished to continue reunification 

services. 

The R. Family

Because Ginger R.’s uncle is Alexandria’s paternal step-grandfather, the tribe 

recognizes the R.s as Alexandria’s extended family. The R.s have an ongoing 

relationship with Alexandria’s half-sister, Anna, who visits the R.s on holidays and for a 

week or two during the summer. Anna and Alexandria have the same paternal 

grandmother (who has since passed away) and step-grandfather, and the step-grandfather 

has designated the R.s to care for Anna if he should become unable to care for Anna. 

The R.s expressed their interest in adopting Alexandria as early as October 2011. 

They were initially told that to avoid confusing Alexandria, they should not contact her 

while father attempted to reunify. If reunification efforts failed, they were the tribe’s first 

choice for adoption. The family has approval for Alexandria to be placed with them 

under the Interstate Compact on the Placement of Children (ICPC). The R.s first visited 

Alexandria shortly after the court terminated father’s reunification services. Since then, 

they video chat with Alexandria about twice a week and have had multiple in-person 

visits in Los Angeles. The P.s refer to the R.s as family from Utah. At one point, when 

Alexandria asked if she was going to Utah, the P.s responded that they did not know for 

sure, but it was possible. Russell and Summer P. testified that before and following a 

recent visit by the R.s, most likely in June 2013, Alexandria was upset and said she did 

not want to visit with the R.s and did not like it when they came to visit. Russell P. 

acknowledged that the change in Alexandria’s feelings coincided with the birth of a new 

baby in the P. family and a transition to a new therapist for Alexandria. 
8

The P. Family

Alexandria has lived with the P.s for over two and a half years, beginning in 

December 2011. By all accounts, they have provided her with clear and consistent rules, 

and a loving environment. Alexandria is bonded to the P.s, and has a healthy attachment 

to them. The Department consistently reminded the P.s that Alexandria is an Indian child 

subject to the ICWA placement preferences. At some point after father’s reunification 

efforts failed, the P.s decided they wanted to adopt Alexandria. They discussed the issue 

with the Department social worker, who advised them that the tribe had selected the R.s 

as the planned adoptive placement. 

Transition Planning

As ordered by the court on April 12, 2013, the Department arranged a conference 

call to discuss a transition plan in anticipation of a possible court order directing 

placement with the R.s. The call lasted 90 minutes and included the P.s in Los Angeles; 

the R.s from Utah; Ruth Polcino, Alexandria’s therapist at United American Indian 

Involvement; Polcino’s supervisor, Jennifer Lingenfelter; Alexandria’s attorney, Kerri 

Anderson; Department social worker Roberta Javier, as well as two other Department 

employees. The participants agreed on a transition plan that involved a relatively short 

transition, with both families meeting for breakfast or at a park, explaining to Alexandria 

that she is going to with the R.s, who are family who love Alexandria very much and will 

take good care of her. The P.s would reassure Alexandria that they love her and will 

always be a part of her family. 

PROCEDURAL BACKGROUND

The Department filed a petition in this matter on April 25, 2011, alleging that 

Alexandria was at risk of physical harm due to her parents’ history of substance abuse. 
9

The court appointed counsel for Alexandria and father, ordered reunification services for 

father, and later found father to be Alexandria’s biological father based on DNA test 

results.6 

On August 30, 2011, the court found that the ICWA applies and the matter was 

transferred to a specialized department for the ICWA cases, with Commissioner Sheri 

Sobel presiding. On November 3, 2011, the Department filed a Last Minute Information 

attaching the tribe’s Notice of Intervention, which the court acknowledged and filed the 

same day. A later Last Minute Information filed by the Department attached a 

declaration of a tribal social worker acknowledging that the ICWA requirements for 

Alexandria’s removal from parental custody had been met.7 

On December 22, 2011, the court conducted adjudication and disposition hearings, 

sustaining allegations under subdivision (b) of Welfare and Institutions Code section 300 

and removing Alexandria from parental custody. The court ordered reunification services 

for father, but denied services for mother. The court granted father monitored visits at 

least three times a week after he was released from custody. At a progress hearing on 

March 22, 2012, the court granted the Department discretion to allow father unmonitored 

daytime visits with Alexandria. On June 21, 2012, the Department filed a report 

describing father’s substantial compliance with reunification services and the likelihood 

that father would be able to reunify with Alexandria. The same day, the court ordered 

play therapy for Alexandria. On August 17, 2012, the court granted the Department’s 

petition to change court order, reinstating the requirement that father’s visits be 

supervised. 

 

6

It is unclear why the court did not find father to be a presumed father, a status 

father requested early on in the case. 

7

 The declaration stated “active efforts have been made to provide remedial 

services and rehabilitation programs designed to prevent the breakup of the Indian family 

and those efforts have been unsuccessful. There is clear and convincing evidence that 

continued custody . . . is likely to cause the Indian child serious emotional or physical 

damage.” 
10

On October 4, 2012, the court terminated father’s reunification services and 

scheduled a hearing for termination of parental rights under Welfare and Institutions 

Code section 366.26. At the Department’s request on November 16, 2012, the court 

issued a request for expedited placement, identifying the R.s in Utah as the planned 

placement under the ICPC. 

On January 17, 2013, while the ICPC request was still in process, Alexandria’s 

guardian ad litem and court-appointed attorney requested a “Do Not Remove” order to 

prevent Alexandria from being moved out of state without a court order. Commissioner 

Sobel granted the request on January 18, 2013. Other than two continuances granted in 

April 2013, all later proceedings were held before Judge Amy Pellman. 

Over the next six months, the court granted de facto parent status to the P.s, the 

ICPC request permitting Alexandria’s placement with the R.s in Utah was approved, 

Alexandria’s attorney withdrew her objection to Alexandria’s change in placement,8 and 

all parties submitted briefing addressing whether good cause existed to depart from the 

ICWA’s adoptive placement preferences. 

On July 29, 2013, the court commenced a hearing that spanned five days over the 

course of three months to determine whether good cause existed to permit Alexandria to 

remain with the P.s, rather than placing her with the R.s in Utah in accordance with the 

ICWA’s adoptive placement preferences. The court heard testimony from (1) Roberta 

Javier, the social worker for the Department who was assigned to the case in December 

2011, around the same time Alexandria was placed with the P.s; (2) Jennifer Lingenfelter, 

clinical director at United American Indian Involvement, where she supervised 

Alexandria’s first therapist, Ruth Polcino, until Polcino went on maternity leave; (3) 

Russell P., Alexandria’s foster father; (4) Summer P., Alexandria’s foster mother; (5) 

Ginger R., Alexandria’s extended family member and proposed adoptive mother; (6) 

Genevieve Marquez, Alexandria’s current therapist at United American Indian 

Involvement; (7) Amanda Robinson, a tribal social worker; (8) Lauren Axline, a foster 

 

8 The record contains no information about the reasons for this change in position. 
11

adoption case manager at the foster agency that placed Alexandria with the P.s; and (9) 

Billy Stevens, a tribal elder.

The social workers and therapists who testified all agreed that Alexandria has a 

primary attachment and a strong bond with the P.s. She considers Russell and Summer P. 

her parents and the P. children her siblings. Regarding Alexandria’s ability to attach with 

a new caregiver if her bond with the P.s is broken, Javier and Lingenfelter acknowledged 

that a change in placement would be potentially traumatic, but that the existence of a 

primary bond and healthy attachment increases the likelihood that a child will 

successfully attach to a new caregiver. Marquez believed that with appropriate 

intervention and support, Alexandria would cope with a transition resiliently, 

characterizing the possible trauma as a loss, but not the equivalent of the death of a 

parent. Lingenfelter and Marquez both acknowledged that any transition would pose a 

risk of trauma, including the possibility of depression and anxiety. Javier did not believe 

Alexandria would suffer any severe trauma because she sees the R.s as family and would 

not feel as if she is being sent to live with strangers. Axline, on the other hand, compared 

the transition to the death or loss of a parent or family, because “she is being taken away 

from everything that is familiar to her, everything that she’s known to be stability.” She 

also believed that Alexandria would have a more difficult time adjusting to a new 

placement than when she first came to the P.s because of the length of time she has been 

living with the P.s, and because she is able to understand far more than when she 

transitioned to the P.s at two years of age. 

On December 9, 2013, the court issued a written statement of decision, 

summarized below. It also granted a seven-day stay, during which the P.s filed a petition 

for writ of supersedeas, which this court granted, directing that Alexandria would stay 

with the P.s until this court decided the P.s’ appeal of the court’s December 9, 2013 

order. 
12

THE DEPENDENCY COURT’S DECISION

The court issued its written statement of decision on December 9, 2013, finding 

the P.s had not demonstrated good cause to depart from the placement preferences and 

ordering a gradual transition for Alexandria to move from the P.s’ home to the R.s’ home. 

In its decision, the court reviewed the law governing the ICWA’s placement preferences 

and concluded that the R.s were extended family entitled to preference under section 

1915(a) and Welfare and Institutions Code section 361.31(h) unless the P.s demonstrated 

good cause to depart from that preference. The court’s analysis focused primarily on 

“whether the significant bonding between the [P.s] and Alexandria constitute[s] good 

cause to deviate from the placement preferences.” It perceived a conflict in California 

appellate law on whether a court could consider the bonding that had occurred between 

Alexandria and the P.s as part of its good cause analysis. (In re A.A. (2008) 167 

Cal.App.4th 1292 (A.A.) [affirming good cause finding based on expert testimony that 

minors suffered from reactive attachment disorder and changing placement would be 

detrimental]; compare In re Desiree F. (2000) 83 Cal.App.4th 460 (Desiree F.) [finding 

the ICWA notice violation and instructing the trial court to not consider the bonding 

between the child and current foster family and the trauma that may result from a change 

in placement in determining whether good cause exists to deviate from the ICWA’s 

placement preferences].) 

The court then cited Adoption of Halloway (Utah 1986) 732 P.2d 962, 971

(Halloway) for the proposition that “courts generally agree that the psychological bond of 

an Indian child to a foster or adoptive parent should not be used as the sole evidence to 

support a finding of emotional damage.” The court did not discuss Halloway, but did 

describe two other out of state cases. In the first case, the Montana Supreme Court 

reversed a lower court finding of good cause based on the child’s strong psychological 

bond with foster parents, concluding instead that absent testimony demonstrating a child 

was “certain to develop an attachment disorder” the child’s attachment does not 

necessarily outweigh the placement preferences. (In re C.H. (Mont. 2000) 997 P.2d 776, 
13

783 (C.H.).) In the second case, the county and minor’s counsel appealed a decision 

transferring a dependency case to tribal court pursuant to section 1911. The Nebraska 

Supreme Court reversed, concluding that the good cause exception applied when the two 

special needs children had lived with their non-Indian foster family for the past seven

years and two experts testified about the negative effects of a change in placement. 

(Interest of C.W. (Neb. 1992) 479 N.W.2d 105, 116-118, overruled by In re Interest of

Zylena R. (Neb. 2012) 825 N.W.2d 173, to the extent that it permits a state court to 

consider the best interests of an Indian child in deciding whether there is good cause to 

deny a motion to transfer a proceeding to tribal court.) 

The court distinguished Alexandria’s situation from the facts under consideration 

in A.A., C.H., and Interest of C.W., noting that “[t]he expert testimony in this case did not 

reach to the level of certainty that Alexandria would suffer extreme detriment from 

another move.” The court’s decision included excerpts from two articles about the effect 

of changes in placement on children’s brains,9 but then stated no evidence had been 

presented to contradict the expert testimony that a child who has successfully bonded 

would have an easier time bonding again and any trauma associated with a change in 

placement would be tempered by the stability of the earlier placement. The court noted 

the lack of evidence as to why introducing Alexandria to the R.s earlier would have 

interfered with reunification efforts, and admonished both the tribe and the Department 

for their respective roles in delaying contact between Alexandria and the R.s.

Ultimately, the court concluded that the P.s “were unable to meet their burden by 

clear and convincing evidence, that either the child currently had extreme psychological 

or emotional problems or would definitively have them in the future. Without that 

evidence, supported by experts, there is insufficient evidence to warrant a deviation from 

the placement preference. [Citations.] The evidence is uncontroverted that Alexandria is 

extremely bonded to the [P.s] and that she sees this family as her primary attachment. 

 

9 The articles were not placed in evidence below, nor were they the subject of 

expert testimony at trial. 
14

And while the bonding with the [P.s] is significant to this court, it does not supersede the 

placement preference under the ICWA. In re Desiree F. (2000) 83 Cal.App.4th 460[.]” 

DISCUSSION

We first consider whether the adoptive placement preferences set forth in section 

1915(a), and Welfare and Institutions Code section 361.31, subdivision (c), apply to 

Alexandria. The P.s are the only party challenging application of the placement 

preferences, and we conclude they lack standing to raise constitutional arguments against 

the ICWA’s application because they do not have a constitutionally protected interest in a 

continued relationship with Alexandria. Even if the P.s had standing to raise their 

constitutional arguments, we are not persuaded they are correct on the merits. The 

existing Indian family doctrine applied by Division Two of this court in In re Santos Y.

(2001) 92 Cal.App.4th 1274 (Santos Y.) might permit us to conclude that the ICWA does 

not apply in this case, but the doctrine has been called into question by other appellate 

courts in this state, as well as by the courts of other states. The United States Supreme 

Court’s recent opinion in Adoptive Couple v. Baby Girl (2013) ___ U.S. ___, ___ [133 

S.Ct. 2552, 186 L.Ed.2d 729] (Adoptive Couple) also does not compel a different 

conclusion. Next, we reject the contentions made the P.s and by amici curiae that section 

1915(a)’s adoptive placement preferences do not apply because the Alexandria had 

already been placed in foster care with the de facto parents with the knowledge and 

consent of the tribe.

Concluding that the ICWA’s adoptive placement preferences do apply to this case, 

we then review the trial court’s order finding that the P.s failed to produce clear and 

convincing evidence of good cause to depart from those placement preferences. We 

determine that the court applied the correct burden of proof by requiring the P.s to prove 

by clear and convincing evidence that there was good cause to deviate from section 

1915’s placement preferences. However, the court erroneously required the P.s to prove 
15

a certainty that Alexandria would suffer harm if moved, and failed to consider 

Alexandria’s best interests or her bond with the P.s in determining good cause. 

The ICWA Background Information

Because numerous state and federal cases already review the legislative history

and purpose of the ICWA and California’s statutory enactments pertaining to Indian child 

welfare law (see, e.g., Adoptive Couple, supra, 133 S.Ct. at 2557; Mississippi Band of 

Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 32 (Holyfield); In re W.B., Jr. (2012) 

55 Cal.4th 30, 40 (W.B.); In re Autumn K. (2013) 221 Cal.App.4th 674 (Autumn K.)), we 

limit our discussion here to the law most relevant to the issues presented in this case. The 

ICWA was enacted based on increasing concerns about “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.” 

(Holyfield, supra, at p. 32.) The first section of the ICWA states Congress’s findings “(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; [¶] (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; and [¶] (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.” (§ 1901.)

The ICWA establishes procedural and substantive standards governing the 

removal of Indian children from their families. (W.B, supra, 55 Cal.4th at p. 40.) The

ICWA first requires notice to the Indian child’s parent, Indian custodian, and tribe or the 
16

Bureau of Indian Affairs (Bureau) whenever a court has reason to know that an Indian 

child is involved in a child custody proceeding. (§§ 1903(1), (4), 1912.) Once notice is 

given, the parent and the tribe have the right to petition to transfer the case to tribal court. 

(Holyfield, supra, 490 U.S. at p. 36.) If the matter is not transferred to tribal court, the 

ICWA imposes various procedural and substantive requirements on the proceedings. 

(W.B., supra, 55 Cal.4th at p. 49 [reviewing the ICWA’s requirements in detail].) “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.” (Holyfield, supra, at pp. 36-37.)

One year after the enactment of the ICWA, the Bureau enacted guidelines 

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

Custody Proceedings, 44 Fed.Reg. 67584 (Nov. 26, 1979) (Guidelines).) According to 

the 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. at p. 67586.) 

Responding to inconsistent and sporadic application of the ICWA’s requirements 

by California courts, the California Legislature enacted Senate Bill 678 (SB 678) in 2006. 

SB 678 incorporated the ICWA’s requirements into California statutory law, revising 

several provisions of the Family, Probate, and Welfare and Institutions Codes. (See 

Autumn K., supra, 221 Cal.App.4th at pp. 703-704.) According to the Senate Rules 

Committee, SB 678 “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.) Similar to the ICWA, SB 678 contains a section of express 

legislative findings, including findings that “[i]t is in the interest of an Indian child that 
17

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.” (Welf. & Inst. Code, § 224, subd. (a)(2).) The statute directs 

the court to “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.” (Id. at § 224, subd. (b).) In addition, a determination that a minor is 

“eligible for membership in an Indian tribe and a biological child of a member of an 

Indian tribe shall constitute a significant political affiliation with the tribe and shall 

require the application of the federal Indian Child Welfare Act to the proceedings.” (Id. 

at § 224, subd. (c).) 

“In certain respects, California’s Indian child custody framework sets forth greater 

protections for Indian children, their tribes and parents than ICWA. [Citations.]” (In re 

Jack C., III (2011) 192 Cal.App.4th 967, 977.) Both federal and state law expressly 

provide that if a state or federal law provides a higher level of protection to the rights to 

the parent or Indian guardian of an Indian child, the higher standard shall prevail. (§ 

1921; Welf. & Inst. Code, § 224, subd. (d) [also applying the higher standard of 

protection to the rights of the child].) 

The ICWA defines foster care placement and adoptive placement (§ 1903(1)(i) 

and (iv)), and establishes separate placement preferences and standards for each 

(§ 1915(a) and (b)). The preferences reflect the legislative goals of keeping Indian 

children with their families and preserving the connection between the child and his or 

her tribe when removal is necessary. (§§ 1901, 1902; see also Welf. & Inst. Code, § 

224.) California’s statutes governing placement of Indian children parallel those of the 

federal law. (Welf. & Inst. Code, § 361.31; In re Anthony T. (2012) 208 Cal.App.4th 
18

1019, 1029 (Anthony T.) [California’s statute restates in large part section 1915].) The 

party seeking a placement outside the statutory preferences bears the burden of 

demonstrating good cause. (Welf. & Inst. Code, § 361.31, subd. (j); Fresno County Dept. 

of Children & Family Services v. Superior Court (2004) 122 Cal.App.4th 626, 644

(Fresno County).)

De Facto Parents’ Challenge to the ICWA’s Constitutionality

The P.s make three separate arguments challenging the constitutionality of the 

ICWA’s application in this case.10 They first contend that the ICWA violates equal 

protection because Alexandria’s only connection to the tribe is biological. Second, they 

contend the ICWA unconstitutionally impacts their liberty interest as a “de facto family” 

by requiring Alexandria’s removal from their home. Third, they contend the ICWA is 

invalid because Congress acted outside of its enumerated powers when it enacted the 

ICWA. The P.s lack standing to raise any of these issues on appeal. Even if we were to 

conclude they had standing, we are not persuaded by their arguments. 

A. The P.s’ Standing to Raise Constitutional Challenge

As de facto parents, the P.s’ substantive and appellate rights are more limited than 

those of a presumed parent. (See, e.g., Clifford S. v. Superior Court (1995) 38 

Cal.App.4th 747, 752-754 [de facto parents are not entitled to reunification services and 

therefore lack standing to appeal denial of reunification services].) Because the P.s have 

not identified a constitutionally protected interest in a continued relationship with 

 

10 The Department contends we should refuse to consider the P.s’ constitutional 

arguments because they forfeited the issue by failing to raise it before the court. The P.s 

did raise their constitutional arguments before the court. Even if they did not, we retain

discretion to consider questions of constitutional import, even where the parties have 

forfeited their right to raise the issue on appeal. (In re Spencer S. (2009) 176 Cal.App.4th 

1315, 1323.)
19

Alexandria, and because Alexandria does not join their arguments, we see no basis for 

expanding their limited rights to include the right to appeal the ICWA’s constitutionality. 

“Although standing to appeal is construed liberally, and doubts are resolved in its 

favor, only a person aggrieved by a decision may appeal. [Citations.]” (In re K.C.

(2011) 52 Cal.4th 231, 236.) De facto parents must have a legal right that has been 

aggrieved by the order being appealed. (In re P.L. (2005) 134 Cal.App.4th 1357, 1359-

1362 [de facto parent had no right to continued custody and therefore lacked standing 

where the child was placed pending finding a prospective adoptive home]; but see In re 

Vincent M. (2008) 161 Cal.App.4th 943, 953 (Vincent M.) [foster parents who were also

prospective adoptive parents had standing to challenge an order taking the case off the 

adoption track].) 

In order to challenge the constitutionality of the court’s application of the ICWA 

in this case, the P.s must demonstrate they have a constitutionally protected interest at 

stake. Parents whose children are subjects of a dependency proceeding have 

constitutionally protected interests in a continued relationship with their children. (In re 

Marilyn H. (1993) 5 Cal.4th 295, 306.) Children also have a fundamental interest in 

stability and permanency deserving of constitutional protection. (In re Jasmon O. (1994) 

8 Cal.4th 398, 419.) Foster parents, on the other hand, do not enjoy the same 

constitutional protections. (Backlund v. Barnhart (9th Cir. 1985) 778 F.2d 1386, 1389 

[“foster parents do not enjoy the same constitutional protections that natural parents 

do”].) 

The P.s claim there is a constitutionally protected interest in the foster family 

relationship. Relying on Smith v. Organization of Foster Families for Equality and 

Reform (1977) 431 U.S. 816, 843-847 (Smith), the P.s argue that they and Alexandria, 

considered as a unit, are a de facto family11 with an interest in stability and the right to be 

 

11 The P.s attempt to frame their argument as the family’s interest, rather than their 

interests as foster or de facto parents, ignoring the fact that their arguments about stability 

and Alexandria’s best interests contradict those expressed by Alexandria’s guardian ad 

litem on her behalf. We address this divergence of position later in this opinion. 
20

free from government intrusion. In Smith, a group of foster parents challenged the 

adequacy of protections against removal of foster children who had been placed with the 

family a year or more. (Id. at p. 839.) The United States Supreme Court declined to 

decide whether the foster parents had a constitutionally protected liberty interest, 

concluding instead that even if such an interest existed, the challenged procedures were 

constitutionally adequate. (Id. at p. 847.) Ultimately, the high court held the laws 

governing the foster family relationship were sufficient to satisfy due process, but it did 

not create or recognize an independent constitutional interest in the foster family 

relationship. (Id. at p. 847.) The P.s here contend the ICWA violates both due process 

and equal protection. Without demonstrating that they are entitled to constitutional 

protections as foster parents, they cannot raise such a challenge. 

The P.s also argue they have standing because Alexandria’s constitutional interest 

in stability and permanency is intertwined with their interest in continued custody. Had 

Alexandria argued that the ICWA’s application in this case impaired her constitutional 

rights, our analysis might be different. In Santos Y., the court considered a constitutional 

challenge raised by de facto parents. The court did not address standing, but expressly 

noted that the de facto parents’ position was consistent with minor’s position, and that the 

de facto parents did not possess their own independent constitutional interest. (Santos Y., 

supra, 92 Cal.App.4th at pp. 1315-1376 & fn. 24 [“[a]ppellants may raise the interests of 

the Minor, but as foster parents do not themselves possess an interest in a familial 

relationship with the Minor, that has been found to be fundamental for substantive due 

process analysis”]; see also In re Bridget R. (1996) 41 Cal.App.4th 1483, 1490, fn. 2 

[minors filed a responsive brief supporting position of the de facto parents challenging a 

change in placement under the ICWA].) Even in Smith, appointed counsel for the 

children argued that foster parents possessed no liberty interest independent of the 

interests of the foster children, and the best interests of those children would not be 

served by additional procedural protections against removal from foster families. (Smith,

supra, 431 U.S. at p. 839.) 
21

In contrast here, Alexandria’s counsel and guardian ad litem never contested the 

ICWA’s application to this case, and agreed with the Department, father, and the tribe 

that the ICWA required Alexandria to be placed with the R.s for adoption and good cause 

did not exist to deviate from that placement decision. Thus we conclude that on the facts 

before us, where minor has separate counsel who has sought an outcome consistent with 

the ICWA’s requirements, de facto parents lack standing to independently appeal the 

constitutionality of the ICWA’s application to the case.

Our decision in Vincent M., supra, 161 Cal.App.4th 943, recognizing that de facto 

parents may have standing to appeal orders that impact their right to a continued 

relationship with a foster child, does not require a different result. In Vincent M., the 

minor was placed with the de facto parents when he was only four days old, and the case 

was immediately put on the adoption track. The biological father appeared for the first 

time in the action eight months later, filing a petition under Welfare and Institutions Code 

section 388 seeking reunification services. We held that the de facto parents had a legally 

cognizable interest in the planned adoption and a right to appeal an order that took the 

case off the adoption track. (Id. at p. 953.) The foster parents in Vincent M. were 

aggrieved by the order they were appealing, but they made no constitutional challenge to 

the trial court’s order on behalf of the minor. Here, the P.s acknowledge Alexandria’s 

placement with them was not an adoptive placement and they were consistently made 

aware that the ICWA’s placement preferences were applicable. They knew at all times 

the placement was intended to be temporary to facilitate reunification and Alexandria 

would either reunify with her father or be placed with another family under the ICWA’s 

placement preferences. 

B. Constitutional Arguments

Even if we were to conclude the P.s had standing to challenge the ICWA’s

constitutionality, we find their arguments unpersuasive. The P.s’ constitutional 

arguments emphasize that Alexandria’s connection to the tribe is solely biological, and 
22

that father did not have physical or legal custody of Alexandria before the dependency 

case was filed. We reject the P.s’ attempt to apply the existing Indian family doctrine to 

this case, and to expand the limited holding of the United States Supreme Court in 

Adoptive Couple, supra, 133 S.Ct. 2552, well beyond its intended scope. We also reject 

the argument that Congress acted outside of its enumerated powers in enacting the 

ICWA.

1. The continued viability of the existing Indian family doctrine is 

questionable, and it is inapplicable to this case

The existing Indian family doctrine is a judicially created exception to the ICWA 

for factual situations when the minor has never been a member of an Indian home or 

exposed to Indian culture. It was first applied by the Kansas Supreme Court in Matter of 

Adoption of Baby Boy L. (Kan. 1982) 643 P.2d 168, 175. That court has since repudiated 

the doctrine, as have courts in many other states. (In re A.J.S. (Kan. 2009) 204 P.3d 543, 

548-551; see also Thompson v. Fairfax County Dept. of Family Services (Va.Ct.App. 

2013) 747 S.E.2d 838, 847-848 [citing and joining “the growing chorus of courts that 

have rejected the Existing Indian Family Exception”].) 

In California, there is a split in the appellate districts, and the continued viability 

of the doctrine is far from settled. Four of California’s six appellate districts have 

rejected the doctrine. Most recently, the First Appellate District declared “[t]here is no 

question that the existing Indian family doctrine is not viable in California.” (Autumn K., 

supra, 221 Cal.App.4th at p. 716.) The Sixth Appellate District rejected the doctrine in 

In re Vincent M. (2007) 150 Cal.App.4th 1247, 1265, turning away from its earlier 

application of the doctrine in Crystal R. v. Superior Court (1997) 59 Cal.App.4th 703, 

718-724 (Crystal R.), and explicitly rejecting this district’s continued application of the 

doctrine in Santos Y., supra, 92 Cal.App.4th 1274. Also among those rejecting the 

doctrine are the Third Appellate District (In re Adoption of Hannah S. (2006) 142 
23

Cal.App.4th 988, 996) and the Fifth Appellate District (In re Alicia S. (1998) 65 

Cal.App.4th 79 (Alicia S.)).

Of the two California appellate districts that have upheld the doctrine, the Fourth 

District’s decision (In re Alexandria Y. (1996) 45 Cal.App.4th 1483) pre-dates the 

enactment of Welfare and Institutions Code section 224 in 2006, codifying the California 

Legislature’s intent to protect and encourage an Indian child’s connection to the tribal 

community, regardless of the child’s prior connection to the tribe. Only our own Second 

District has published an opinion rejecting the Legislature’s attempt to establish the 

ICWA’s application where a minor’s sole connection to the tribe is biological. (Santos 

Y., supra, 92 Cal.App.4th 1274 [not applying statute rejecting existing Indian family 

doctrine because California legislature has no independent constitutional authority with 

respect to Indian tribes].) Even if Santos Y., supra, 92 Cal.App.4th 1274 is correct in 

recognizing the existing Indian family doctrine, it is distinguishable from the current case 

because the appellants and the minors in Santos Y. both sought the same result, namely 

continued placement with de facto parents. In contrast here, Alexandria, through her 

counsel, argues the court was correct in applying the ICWA, and only the P.s—who lack 

an independent constitutional right—are arguing the ICWA is unconstitutional as applied. 

Without going into an in-depth analysis, in light of the numerous decisions within 

California and from other states rejecting the existing Indian family doctrine, we are 

inclined to agree with the Sixth District’s reasoning that later California statutes indicate 

a clear intent to prohibit state courts from continuing to apply the existing Indian family 

doctrine in cases where the ICWA would otherwise apply. (See In re Vincent M., supra,

150 Cal.App.4th at p. 1271 (conc. opn. of Bamattre-Manoukian, J.); see also Welf. & 

Inst. Code, § 224, subds. (a)(2) and (c).) 

2. The United States Supreme Court’s analysis in Adoptive Couple

does not impact this case
24

The most recent United States Supreme Court case addressing the ICWA only 

receives tangential mention in the P.s’ opening brief to support their argument that the 

ICWA cannot constitutionally apply to a case where an Indian father never had custody 

of the child. The reasoning of Adoptive Couple, supra, 133 S.Ct. at pp. 2558-2559 has no 

impact on the case before us, because the facts of our case are entirely distinguishable. 

Adoptive Couple involved an Indian father whose child was placed in a private 

adoption after he had voluntarily relinquished his parental rights. (Adoptive Couple, 

supra, 133 S.Ct. at pp. 2558-2559.) The Supreme Court addressed whether the ICWA 

precluded termination of the father’s rights until the court found that “active efforts have 

been made to provide remedial services and rehabilitative programs” to the father and 

that his continued custody of the minor “would result in serious emotional or physical 

harm” to the minor. (Id. at pp. 2557-2558, quoting § 1912 (d) and (f).) The court held 

that such findings were not necessary because father never had physical or legal custody 

of the minor. The court interpreted statutory language referring to a parent’s “continued 

custody” (§ 1912(f)) and efforts directed at preventing the “breakup of the Indian family” 

(§ 1912(d)) as limiting the scope of the statutory requirements so as to exclude a 

biological father who never had physical or legal custody of his child. (Id. at pp. 2560-

2564.) The court’s opinion is based entirely on interpreting the statutory language, in 

particular the phrases “continued custody” and “breakup,” to arrive at the conclusion that 

the ICWA’s protections did not apply to the father. Nowhere in the court’s opinion is 

there a discussion of the ICWA’s constitutionality, or whether it may constitutionally be 

applied in a dependency proceeding where the Indian father has a period of substantial 

compliance with reunification services, including unmonitored visitation. Justice Scalia’s 

dissent in Adoptive Couple raises the question of whether visitation would be sufficient to 

warrant the ICWA’s protections under section 1912(d) and (f). (Id. at pp. 2578-2579 

(dis. opn. of Scalia, J.).) However, the court does not address the concern beyond noting 

that such parents might receive protections under state law. (Id. at p. 2563, fn. 8) None 

of the discussion affects the dependency court’s application of the ICWA in the case 

currently under appeal.
25

Part IV of the United States Supreme Court’s opinion does address the ICWA’s 

placement preferences under section 1915, the provision at issue in our case. The court 

held that when no party entitled to placement preference under section 1915(a) has come 

forward to adopt an Indian child, the preferences identified under that section do not 

apply. (Id. at p. 2564.) This holding does not apply to the case at hand because the R.s 

have been identified as prospective adoptive parents and are entitled to placement 

preference because they are considered extended family by the tribe. Nothing in the 

reasoning of Adoptive Couple leads us to conclude otherwise. 

3. We need not examine the ICWA’s facial constitutionality.

Appellant’s final attack on the ICWA’s constitutionality rests on Justice Thomas’s 

concurrence in Adoptive Couple. (Id. at p. 2565-2571 (conc. opn. of Thomas, J).) Justice 

Thomas characterizes the ICWA as facially unconstitutional because it falls outside 

Congress’s powers to “regulate Commerce . . . with the Indian Tribes.” (U.S. Const., art. 

I, § 8, cl. 3.) This view was not adopted by any other member of the United States

Supreme Court, and even if it had any viability, it would not bar the application of 

California statutes that parallel the ICWA. Thus, the trial court’s decision would still be 

a legitimate application of Welfare and Institutions Code section 360.31. 

Asserted Agreement by the Tribe to Alexandria’s Adoptive Placement by 

Consenting to her Foster Care Placement with the P.s

The P.s and amici curiae make a novel contention12 that by consenting to 

Alexandria’s placement with a family outside of the foster care placement preferences 

 

12 We also decline to consider the argument, contained in footnote 6 of the P.s’ 

opening brief, that the court erred in accepting the tribe’s characterization of the R.s as 

extended family. (California Ass’n of Sanitation Agencies v. State Water Resources 

Control Bd. (2012) 208 Cal.App.4th 1438, 1454 [appellate court may disregard 
26

identified in section 1915(b), the tribe waived the application of the adoptive placement 

preferences stated in section 1915(a).13 We reject this contention because the P.s 

forfeited the issue by failing to raise it before the court and also because it does not 

comport with the plain statutory language.

Because they failed to argue this issue to the court, the P.s are precluded from 

raising the argument on appeal. A claim of error is forfeited on appeal if it is not raised 

in the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293.) “The purpose of this rule is 

to encourage parties to bring errors to the attention of the trial court, so that they may be 

corrected.” (Ibid.) There was an extended time frame during which the P.s argued that 

Alexandria should remain placed with them, but at no point did they argue that the tribe’s 

consent to foster care placement precluded application of section 1915(a). Therefore, this 

issue is forfeited on appeal. 

Even if we did not consider the issue forfeited, we are not persuaded that Congress 

or the California Legislature intended to require tribes to make an election at the time of 

 

contentions not raised in a properly headed argument and not supported by reasoned 

argument]; Cal. Rules of Court, rule 8.204(a)(1)(B).)

13 The relevant statutory text reads as follows: “(a) Adoptive placements; 

preferences [¶] 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. [¶] (b) Foster care or preadoptive placements; criteria; 

preferences [¶] Any child accepted for foster care or preadoptive placement shall be 

placed in the least restrictive setting which most approximates a family and in which his 

special needs, if any, may be met. The child shall also be placed within reasonable 

proximity to his or her home, taking into account any special needs of the child. In any 

foster care or preadoptive placement, a preference shall be given, in the absence of good 

cause to the contrary, to a placement with-- [¶] (i) a member of the Indian child's 

extended family; [¶] (ii) a foster home licensed, approved, or specified by the Indian 

child's tribe; [¶] (iii) an Indian foster home licensed or approved by an authorized nonIndian licensing authority; or [¶] (iv) an institution for children approved by an Indian 

tribe or operated by an Indian organization which has a program suitable to meet the 

Indian child's needs.” (§ 1915(a) and (b).) 
27

foster care placement that would prevent a change in placement for adoption, especially 

when the foster family is informed that they are not being considered as an adoptive 

placement because of the ICWA’s requirements. Section 1903(1) provides separate 

definitions for “foster care placement” and “adoptive placement.”

14

 The ICWA’s 

placement preferences are distinct for each type of placement, and different 

considerations apply for foster care and adoptive placements. (See § 1915(a) [adoptive 

placement preferences]; 1915(b) [foster care placement preferences].) For example, 

foster care placements must be within reasonable proximity to the child’s home and must 

take a child’s special needs into account. (§ 1915(b); Anthony T., supra, 208 Cal.App.4th 

at pp. 1029-1032 [foster care placement was not in “reasonable proximity” to minor’s 

home].) The same is not true for adoptive placements. (§ 1915(a).) The P.s and amici

curiae argue that once an Indian child is placed in foster care under section 1915(b), the 

only way for a court to consider adoptive placement preferences under section 1915(a) is 

if the child is “removed” from the foster placement under section 1916(b). 

This argument is unsupported by case law and in fact, runs counter to the many 

published cases where a tribe or Indian parent initially consents to foster care placement 

that does not comply with the ICWA’s placement preferences, and later asserts adoptive 

placement preferences, usually after reunification efforts have failed. (See, e.g., Santos 

Y., supra, 92 Cal.App.4th 1274 [tribe supported placement with foster parents for two 

years, until it found a suitable individual qualified as a preferred adoptive placement]; 

Native Village of Tununak v. State, Dept. of Health & Social Services, Office of 

Children’s Services (Alaska 2013) 303 P.3d 431, 434 (Tununak) [parties stipulated to a 

 

14

 Section 1903(1)(i) defines “foster care placement” as “any action removing an 

Indian child from its parent or Indian custodian for temporary placement in a foster home 

or institution or the home of a guardian or conservator where the parent or Indian 

custodian cannot have the child returned upon demand, but where parental rights have not 

been terminated[.]” Section 1903(1)(iv) defines adoptive placement as “the permanent 

placement of an Indian child for adoption, including any action resulting in a final decree 

of adoption.” 
28

foster placement that departed from the ICWA’s placement preferences while a search for 

preferred placements continued].) 

The good cause exception permits a court to depart from adoptive placement 

preferences. (See, e.g., Alicia S., supra, 65 Cal.App.4th at pp. 91-92 [removal from a 

foster home is not a foregone conclusion if the ICWA applies, because “good cause” 

exception may permit a different result].) However, we decline to conclude that mere 

consent to a foster care placement falling outside the preferences listed in section 1915(b) 

in order to facilitate reunification efforts precludes a court from ordering a later change in 

placement to comply with section 1915(a)’s adoptive placement preferences.

The Dependency Court’s Decision on the Applicability of the Good Cause Exception 

to the ICWA’s Placement Preferences 

The trial court correctly required the P.s to demonstrate by clear and convincing 

evidence that there was good cause to depart from the ICWA’s placement preferences. 

However, the court’s application of the good cause exception to the facts before it was 

legally erroneous. Because the error was prejudicial to the P.s, we reverse and remand 

the matter for the court to conduct further proceedings necessary to apply the good cause 

exception in a manner consistent with this opinion. 

A. The Clear and Convincing Standard of Proof Applies to Good Cause 

Determinations Under Section 1915 of the United States Code. 

The P.s and amici curiae contend that the trial court applied an erroneous standard 

of proof when it concluded they failed to show good cause by clear and convincing 

evidence. According to the P.s, good cause need only be shown by a preponderance of 

the evidence because both the state and federal statutes are silent on the applicable 

standard of proof. (Evid. Code, § 115 “[e]xcept as otherwise provided by law, the burden 

of proof requires proof by a preponderance of the evidence”].) The Department and 

Alexandria both contend that the court correctly required the P.s to show clear and 
29

convincing evidence of good cause. Alexandria also contends the P.s forfeited the right 

to raise the issue on appeal by failing to object to the court’s use of the clear and 

convincing standard of proof. Father and the tribe join in these arguments. 

We exercise our discretion to proceed to the merits of the P.s’ argument. In a case 

where the placement of a young child is at issue, allocation of the burden of proof in the 

trial court’s assessment of good cause is an issue of vital importance and sufficient 

magnitude to warrant relaxation of the rule of forfeiture. We conclude that in spite of the 

absence of express statutory language, the party asserting the good cause exception to the 

ICWA’s placement preferences must demonstrate good cause by clear and convincing 

evidence. 

We review de novo the question of what standard of proof applies in light of a 

silent or ambiguous statute. (In re Michael G. (1998) 63 Cal.App.4th 700, 709-710 

(Michael G.).) “Our primary aim in construing any law is to determine the legislative 

intent. [Citation.] In doing so we look first to the words of the statute, giving them their 

usual and ordinary meaning. [Citations.]” (Committee of Seven Thousand v. Superior 

Court (1988) 45 Cal.3d 491, 501.) The function of a standard of proof is to instruct the

finder of fact about the degree of confidence necessary for a particular type of 

adjudication, balancing the weight of private and public interests and reflecting a societal 

judgment of how the risk of error should be distributed between the parties. (Santosky v. 

Kramer (1982) 455 U.S. 745, 754-755; Cynthia D. v. Superior Court (1993) 5 Cal.4th 

242, 251.) Here, a lower standard of proof would likely result in more frequent 

exceptions to the ICWA’s placement preferences, undermining “[t]he most important 

substantive requirement imposed on state courts” by the ICWA. (Holyfield, supra, 490 

U.S. at pp. 36-37.) The Guidelines state that custody proceedings involving Indian 

children “shall follow strict procedures and meet stringent requirements to justify any 

result in an individual case contrary to [the ICWA placement] preferences,” and that any 

ambiguities in the ICWA statutes “shall be resolved in favor of a result that is most 

consistent with these preferences.” (Guidelines, supra, 44 Fed. Reg. at p. 67586.)
30

Although the Guidelines are not binding, they help inform our decision of whether the 

ICWA mandates a “clear and convincing evidence” standard in adoptive preferences.

Neither § 1915 nor Welfare and Institutions Code section 361.31 specify a 

standard of proof for the good cause exception to the placement preferences identified in 

the statute. This is in contrast to other provisions of the two statutory schemes, where 

either Congress or the California Legislature has specified a standard of proof. (See, e.g., 

§ 1912(e) [requiring clear and convincing evidence that a parent’s continued custody of a 

child is likely to result in harm to the child before placing the child in foster care]; Welf. 

& Inst. Code, § 361.7(c) [same].) The principles of statutory construction recognize that 

when the legislature employs a term in one place and omits it in another, the term usually 

should not be implied where it is absent. (Michael G., supra, 63 Cal.App.4th at p. 710.) 

The same principle applies in federal law. (Grogan v. Garner (1991) 498 U.S. 279, 286

[legislative “silence is inconsistent with the view that Congress intended to require a 

special, heightened standard of proof”].) However, courts have also interpreted statutes 

that do not specify a standard of proof as requiring clear and convincing evidence, rather 

than the lower standard of preponderance of the evidence. (See, e.g., In re Marquis D.

(1995) 38 Cal.App.4th 1813, 1827-1829 [despite statute’s silence, the Department must 

show clear and convincing evidence of detriment before court can deny non-custodial 

parent’s request for placement].) 

The ICWA’s policy goal of promoting the stability and security of Indian tribes 

and families persuades us to join the growing number of state courts, including the 

Supreme Courts of Alaska and South Dakota, that apply the clear and convincing 

standard of proof to good cause determinations under section 1915. (See, e.g., Tununak, 

supra, 303 P.3d 431 [overruling earlier precedent and requiring clear and convincing 

evidence for good cause determinations]; People ex rel. South Dakota Dept. of Social 

Services (S.D. 2011) 795 N.W.2d 39, 43-44 [“deviations from the ICWA placement 

preferences require a showing of good cause by clear and convincing evidence”]; In re 

Adoption of Baby Girl B. (Okla.Ct.App. 2003) 67 P.3d 359, 373–74 [clear and 

convincing standard of proof applies to section 1915(b) determinations]; Matter of
31

Custody of S.E.G. (Minn.Ct.App. 1993) 507 N.W.2d 872, 878), revd. on other grounds, 

(Minn. 1994) 521 N.W.2d 357 (S.E.G.) [“it is unreasonable to assume that Congress, by 

its silence, intended to apply the preponderance of the evidence standard when 

determining whether ‘good cause’ exists to deviate from the adoption placement 

preferences”].) In contrast, the P.s do not cite to any cases applying the preponderance of 

the evidence standard of proof to good cause exceptions to the placement preferences, 

and we are aware of only one published appellate court decision rejecting the clear and 

convincing standard of proof. (Department of Human Services v. Three Affiliated Tribes 

of Ford Berthold Reservation (Or.Ct.App. 2010) 238 P.3d 40, 50, fn. 17 [rejecting 

minor’s contention that good cause determination must be based on clear and convincing 

evidence].)

Just last year, the Alaska Supreme Court examined this precise issue, and we are 

persuaded by its well-reasoned decision that despite the lack of explicit statutory 

language, a court must find clear and convincing evidence of good cause before it may 

deviate from the ICWA’s placement preferences. In Tununak, supra, 303 P.3d at pp. 

433-440, a four-month-old Indian girl was removed from her parents, who lived in 

Anchorage. The girl’s maternal grandmother lived in a remote Alaskan town, and 

although she was available for placement, all parties agreed that immediate placement 

would hinder any efforts at reunification. Instead, the girl was placed with a non-Indian 

foster family in Anchorage to facilitate reunification efforts. 

The tribe consented to the foster care placement. After parents failed to reunify,

the lower court found good cause by a preponderance of the evidence to deviate from a 

preferred placement, allowing the minor to remain with the foster family rather than 

placing her with maternal grandmother for adoption. (Tununak, supra, 303 P.3d at pp. 

433-440.) The Alaska Supreme Court in Tununak conducted an in-depth examination of 

legislative history and cases from other jurisdictions, and also considered its own earlier 

decisions identifying preponderance of the evidence as the correct standard of proof for 

finding good cause, and reached the conclusion that its earlier decisions were erroneous 

and the correct standard of proof for the good cause exception was clear and convincing 
32

evidence. (Id. at pp. 446-449.) In light of the ICWA’s policy “to protect the best 

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

families . . . ” the Tununak court declined to infer the appropriate standard of proof 

without a closer examination of Congress’s intent. (§ 1902; Tununak, supra, at p. 447.) 

In enacting the ICWA, Congress intended to “eradicate the unwarranted removal of 

Indian children from their communities. Congress expressly noted the role of state courts 

in perpetuating this problem and sought to rein in state court discretion through the 

passage of mandatory federal standards, amongst which is § 1915(a).” (Tununak, supra, 

at pp. 447-448, fns. omitted.) 

The Alaska Supreme Court looked to the United States Supreme Court’s reasoning 

in Holyfield, supra, 490 U.S. 30, as supporting the inference that a higher evidentiary 

standard was warranted based on close scrutiny of Congressional intent. (Id. at p. 448.) 

In Holyfield, the United States Supreme Court pointed to the legislative history and 

purpose of the ICWA to conclude that Congress did not intend to leave definitions of 

critical terms such as “domicile” to state courts because Congress perceived those courts 

as “partly responsible for the problem it intended to correct.” (Holyfield, supra, 490 U.S.

at 45.) Just as Holyfield considered it “beyond dispute that Congress intended a uniform 

federal law of domicile for the ICWA” (id. at p. 47), courts have almost universally 

concluded that Congress intended a nationally consistent standard of proof for the good 

cause exception. (Tununak, supra, at p. 448). As the Tununak court explained, 

“Holyfield instructs us that like the definition of ‘domicile,’ the ‘good cause’ standard 

must be interpreted according to Congress’s intent. While we are mindful that Congress 

intended to leave the good cause determination to the states, we recognize that this 

discretion is not without bounds. As our foregoing analysis of the purposes and policies 

that drove the enactment of ICWA indicates, the clear and convincing evidence standard 

is most consistent with Congress’s intent to maintain Indian families and tribes intact 

wherever possible by eradicating the unwarranted removal of Indian children from their 

communities.” (Ibid.)
33

The Tununak court also pointed out that “[a] clear and convincing standard of 

proof for § 1915(a) good cause determinations is also more consistent with other 

provisions in ICWA demanding a heightened standard of proof.” (Tununak, supra, 303 

P.3d at p. 449, referring to §§ 1921 [“[i]n any case where State or Federal law applicable 

to a child custody proceeding . . . provides a higher standard of protection to the rights of 

the parent or Indian custodian of an Indian child than the rights provided under this 

subchapter, the State or Federal court shall apply the State or Federal standard”]; 1912(e) 

[requiring clear and convincing evidence that the continued custody of the child by the 

parent or Indian custodian is likely to result in serious emotional or physical damage to 

the child]; and 1912(f) [requiring evidence beyond a reasonable doubt before parental 

rights are terminated].) 

Based on principles of statutory interpretation and case law, both from California 

as well as other state courts, we are persuaded that even in the face of legislative silence 

on the question, both Congress and the California Legislature intended for courts to apply 

the higher clear and convincing evidence standard of proof before making a good cause 

exception to the placement preferences. 

B. The Dependency Court’s Interpretation of the Good Cause Exception was 

Legally Erroneous

When a party appeals a good cause determination, the appellate court usually 

applies a substantial evidence standard of review. (Fresno County, supra, 122 

Cal.App.4th at pp. 644-646.) “Under this standard, we do not pass on the credibility of 

witnesses, attempt to resolve conflicts in the evidence, or reweigh the evidence. Instead, 

we draw all reasonable inferences in support of the findings, view the record favorably to 

the juvenile court’s order and affirm the order even if there is other evidence supporting a 

contrary finding. [Citations.] The appellant has the burden of showing there is no 

evidence of a sufficiently substantial nature to support the court’s findings. [Citation.]” 

(In re G.L. (2009) 177 Cal.App.4th 683, 697-698.) However, because the P.’s challenge
34

the lower court’s interpretation of the term “good cause,” they raise issues of statutory 

interpretation, which we review de novo. (Anthony T., supra, 208 Cal.App.4th at p. 

1028.)

The court committed three legal errors in interpreting the meaning of the term 

“good cause” as an exception to the placement preferences identified in section 1915. 

First, it erred by requiring the P.s to show that Alexandria either “currently had extreme 

psychological or emotional problems or would definitively have them in the future” and 

reasoning that the “expert testimony in this case did not reach to the level of certainty that 

Alexandria would suffer extreme detriment from another move.” Second, while not 

entirely clear from the court’s statement of decision, the court may have erroneously 

declined to consider the bond between Alexandria and the P.s, and the detriment 

Alexandria might suffer from an order requiring a change in placement. Third, the court 

failed to consider Alexandria’s best interests in deciding whether the good cause 

exception applied. 

“[T]he legislative history of the [ICWA] ‘states explicitly that the use of the term 

“good cause” was designed to provide state courts with flexibility in determining the 

disposition of a placement proceeding involving an Indian child. [Citation.]’ [Citation.]” 

(In re Robert T. (1988) 200 Cal.App.3d 657, 663.) In determining whether good cause 

exists to depart from the ICWA’s placement preferences, the court may take a variety of 

considerations into account. The Guidelines state “a determination of good cause not to 

follow the order of preference set out above shall be based on one or more of the 

following considerations: [¶] (i) The request of the biological parents or the child when 

the child is of sufficient age. [¶] (ii) The extraordinary physical or emotional needs of 

the child as established by testimony of a qualified expert witness. [¶] (iii) The 

unavailability of suitable families for placement after a diligent search has been 

completed for families meeting the preference criteria.” (Guidelines, supra, 44 Fed. Reg.

at p. 67594.) These considerations are not exclusive, and courts are free to consider other 

factors. (Fresno County, supra, 122 Cal.App.4th at pp. 642-643 [the guidelines “should 

be given important but not controlling significance”].)
35

1. Certainty requirement 

In determining what evidence is required to establish good cause, the court ruled 

that a moving party could only show good cause by expert testimony and evidence that 

the child “currently had extreme psychological and emotional problems, or would 

definitively have them in the future.” This extreme standard is not based in California 

law, but instead is found in an opinion by the Montana Supreme Court, which reversed a 

lower court’s finding of good cause to deviate from the ICWA’s placement preferences. 

(C.H., supra, 997 P.2d 776.) In C.H., the lower court determined the child had likely 

suffered physical abuse and placed her with non-Indian foster parents at the age of three 

months. When the child was fifteen months old, the lower court found good cause to 

deviate from the ICWA’s placement preferences based in part on a finding that “as a 

result of [minor’s] emotional bond with the [foster family] and the abuse she experienced 

early in life, she is at risk for developing an attachment disorder should she be removed” 

from her foster home. (Id. at p. 781.) The Montana Supreme Court reversed, pointing to 

the lack of any testimony that the minor “was certain to develop an attachment disorder if 

removed from” the foster family’s home. (Id. at 783, italics added.) The court went on 

to explain the certainty requirement by stating “[t]he risk that a child might develop such 

problems in the future is simply too nebulous and speculative a standard on which to 

determine that good cause exists to avoid the ICWA placement preferences. Indeed, it 

could be said that any child who has been abused, removed from its parents’ care at a 

young age and placed in foster care might be at risk for developing emotional or 

psychological disorders. To allow such an indefinite standard to meet the good cause test 

for avoiding the preferences would essentially ignore the preferences set forth in 

§ 1915(a) of the ICWA.” (Id. at p. 783.)

The decision in C.H., supra,997 P.2d 776 is in a distinct minority among cases 

interpreting the good cause requirement, as most cases do not require the party seeking a 

good cause exception to the placement preferences to demonstrate with certainty that a 
36

child will suffer harm. (See, e.g., Fresno County, supra, 122 Cal.App.4th at p. 640 

[affirming good cause finding based on “high risk” that minor would develop an 

attachment order]; A.A., supra, 167 Cal.App.4th at pp. 1329-1330 [good cause to remain 

in non-preferred placement because removal posed a serious risk of harm].) An Arizona 

appellate opinion reflects our concern about holding a moving party to such a high 

standard: “We disagree with In re C.H. interpreting ICWA to require an expert to testify 

that trauma is certain to result from a transfer of custody or if a certain placement is or is 

not made cannot be in a child’s best interest. Prediction of psychological or emotional 

harm is not an exact science. All we can expect is that, given the expert’s experience, 

there is a reasonable prospect for significant emotional harm to the child by removal from 

a home.” (Navajo Nation v. Arizona Dept. of Economic Sec. (Ariz.Ct.App. 2012) 284 

P.3d 29, 38 (Navajo Nation), italics added.) 

Based on the cases discussed above, we conclude that the court incorrectly 

required the P.s to show a certainty that Alexandria would suffer harm if the court 

followed the placement preferences listed in § 1915(b). Instead, we hold that a court may 

find good cause when a party shows by clear and convincing evidence that there is a 

significant risk that a child will be suffer serious harm as a result of a change in 

placement.15 (See, e.g., Fresno County, supra, 122 Cal.App.4th at p. 640.) 

2. Bonding with foster family 

The court erroneously relied on Desiree F., supra, 83 Cal.App.4th at p. 476 and 

Halloway, supra, 732 P.2d 962 to conclude that “while the bonding with the [P.s] is 

 

15

 In its decision, the court emphasizes the lack of expert testimony to support 

application of the good cause exception. Although expert testimony is needed to 

establish that a child has “extraordinary physical or emotional needs” as described in the 

Guidelines (Guidelines, supra, 44 Fed. Reg. at p. 67594), courts have discretion to base 

their good cause determinations on factors not listed in the Guidelines. (Fresno County, 

supra, 122 Cal.App.4th at pp. 642-643.) Accordingly, evidence supporting a good cause 

finding need not be limited to expert testimony. (Ibid.) 
37

significant to this court, it does not supersede the placement preference under the 

ICWA.” It is impossible to determine from this language whether the court considered 

the bond between Alexandria and the P.s as a factor, or felt compelled by Desiree F. to 

ignore the bond in determining good cause. To the extent the court relied on Desiree F. 

to exclude the bond as a factor in the good cause determination, it did so erroneously, 

because the facts of our case do not warrant such an exclusion. In Desiree F., the social 

services agency was responsible for the delay in notifying the tribe of the proceedings, 

and the appellate court clarified that on remand, the trial court could not consider factors 

flowing from the agency’s “flagrant violation” of the ICWA, including any bond the 

minor developed with the current foster family. (Desiree F., supra, at p. 476.) In the 

present case, the Department acted promptly to notify the tribe, and the social worker was 

in communication with the tribe even before Alexandria was placed with the P.s. Thus, 

no ICWA violation precludes the court from considering the bond that Alexandria has 

with her foster family. 

The social workers and therapists who testified at trial all agreed that Alexandria 

had a strong bond and a healthy attachment to the P.s. Testimony varied on nature of the 

trauma Alexandria would suffer upon the breaking of her bond with the P.s as her 

primary caregivers. Genevieve Marquez and Jennifer Lingenfelter, the therapist and 

supervisor at United American Indian Involvement, acknowledged that being removed 

from the P.s would cause some trauma to Alexandria, but that she was resilient and 

would overcome any trauma, particularly if she was able to maintain continued contact 

with the P.s and received therapeutic support after placement with the R.s. The 

Department social worker, Roberta Javier, acknowledged that the transition would be 

difficult for Alexandria, but that because she has a healthy attachment currently, and 

because she knows the R.s as family, she would be able to renegotiate a new bond that 

would be just as healthy. Lauren Axline, the social worker for the foster family agency, 

had the strongest views of the negative impact on Alexandria. It was Axline’s belief that 

Alexandria would experience removal as the death of a parent or family “because she is 

being taken away from everything that is familiar to her, everything that she’s known to 
38

be stability.” Axline also felt that continued contact and therapeutic support would not 

lessen the trauma suffered by Alexandria. 

In fact the bond between Alexandria and her caretakers and the trauma that 

Alexandria may suffer if that bond is broken are essential components of what the court 

should consider when determining whether good cause exists to depart from the ICWA’s 

placement preferences. In addition, Halloway does not support excluding the bond from 

a good cause consideration under section 1915, as it involved a different section of the 

ICWA concerning tribal court jurisdiction, and good cause for a court to decline to 

transfer a dependency case to tribal court. (Halloway, supra, 732 P.2d at pp. 971-972.)

3. Best interests 

The court also committed legal error by failing to consider Alexandria’s best 

interests as part of its good cause determination. The court’s written statement of 

decision does not reveal whether the court considered Alexandria’s best interests as one 

of the key factors in determining whether there is good cause to depart from the ICWA’s 

placement preferences. “The ICWA presumes it is in the best interests of the child to 

retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future 

generations, a most important resource. (In re Crystal K. (1990) 226 Cal.App.3d 655, 

661.)” (Desiree F., supra, 83 Cal.App.4th at p. 469.) But the presumption that following 

the placement preferences is in a child’s best interest is a starting point, not the end of the 

inquiry into a child’s best interests. As an Arizona appellate court recently explained, 

courts “should start with the presumption that ICWA preferences are in the child’s best 

interest and then balance that presumption against other relevant factors to determine 

whether placement outside ICWA preferences is in the child’s best interest.” (Navajo 

Nation, supra, 284 P.3d at p. 35.) 

“ ‘Good cause’ often includes considerations affecting the best interests of the 

child, such as whether the child has had any significant contact with the tribe . . . or the 

extent of the child’s bonding with a prospective adoptive family. [Citations.].” (Crystal 
39

R., supra, 59 Cal.App.4th 703, 720, fn. omitted.) Although we are unaware of any 

published California case holding that a court must consider a child’s best interests when 

determining good cause, such an approach is consistent with the law in many other states 

and with California’s emphasis on best interests in dependency proceedings. (See, e.g., 

In re Lauren R. (2007) 148 Cal.App.4th 841, 855 [“the fundamental duty of the court is 

to assure the best interests of the child, whose bond with a foster parent may require that 

placement with a relative be rejected”]; Tununak, supra, 303 P.3d at pp. 451-452 [good 

cause depends on many factors, including the child’s best interests]; In Interest of A.E.

(Iowa 1997) 572 N.W.2d 579, 585 [good cause depends on a fact determinative analysis 

consisting of many factors, including the best interests of the child]; In re Interest of Bird 

Head (Neb. 1983) 331 N.W.2d 785, 791 [“(ICWA) does not change the cardinal rule that 

the best interests of the child are paramount, although it may alter its focus.”]; but see 

S.E.G., supra, 521 N.W.2d at pp. 362-363 [holding that the good cause exception does 

not include the best interests of the child].) Based on the foregoing, we conclude the 

court erred in failing to consider whether, in light of the presumption that adherence to 

the placement preferences would usually be in a minor’s best interests, Alexandria’s best 

interests supported a finding of good cause. 

C. The Dependency Court’s Erroneous Interpretation of the Good Cause 

Exception was Prejudicial

Based on the evidence presented to the court at the good cause hearing, we 

conclude that the court’s erroneous application of the good cause exception was 

prejudicial. (See In re Abram L. (2013) 219 Cal.App.4th 452, 463 [finding prejudicial 

error based on reasonable probability that a result more favorable to the appealing party 

would have been reached in the absence of error].) In this case, it is reasonably probable 

that the court’s decision would have been different had it applied the correct good cause 

standard, considering risk of harm rather than requiring the P.s to show a certainty of 
40

harm, and considering Alexandria’s best interests, including the strength and longevity of 

her bond to the P.s and the trauma she may suffer if that bond is broken. 

A full year has passed since the court began its good cause hearing in July 2013, 

and circumstances may have changed in the interim. For example, Alexandria may have 

had additional opportunities to bond more strongly with the R.s, reducing the risk of 

detriment or trauma. Alternatively, her bond with the P.s may have become even more 

primary and strong. Because we reverse and remand, we emphasize that in determining 

whether good cause exists to depart from the placement preferences identified in section 

1915(a), the court may consider facts and circumstances that have arisen since the filing 

of this appeal. (See, e.g., In re B.C. (2011) 192 Cal.App.4th 129, 150-151 [reversing and 

remanding with clarification that in determining child’s best interests, the court may 

consider events arising since the filing of the appeal].) 

We recognize that a final decision regarding Alexandria’s adoptive placement will 

be further delayed as a result of our determination of the merits of this appeal. That delay 

is warranted by the need to insure that the correct legal standard is utilized in deciding 

whether good cause has been shown that it is in the best interest of Alexandria to depart 

from the ICWA’s placement preferences. 
41

DISPOSITION

The order transferring custody of the minor to the R.s is reversed. The cause is 

remanded to the dependency court with directions to determine if good cause exists to 

deviate from the ICWA’s adoptive placement preferences in accordance with this 

opinion.

KRIEGLER, J. 

We concur: 

TURNER, P.J.

MOSK, J.