Opinion
F062458
01-31-2012
In re ADAM L., a Person Coming Under the Juvenile Court Law. STANISLAUS COUNTY COMMUNITY SERVICES AGENCY, Plaintiff and Respondent, v. MICHAEL L., Defendant and Appellant.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant. John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 515558)
OPINION
APPEAL from a judgment of the Superior Court of Stanislaus County. Ann Q. Ameral, Judge.
M. Elizabeth Handy, under appointment by the Court of Appeal, for Defendant and Appellant.
John P. Doering, County Counsel, and Carrie M. Stephens, Deputy County Counsel, for Plaintiff and Respondent.
The Hopi Indian tribe requested transfer of Adam L.'s dependency case to its tribal court during the permanency planning hearing, approximately 20 months after the tribe had been notified of the dependency proceedings. The juvenile court denied the request, finding that the tribe had delayed unreasonably before making the request. The tribe does not appeal from the denial of its request. Michael L., Adam's biological father and an enrolled member of the Hopi tribe, appeals the juvenile court's order. We will affirm the juvenile court's order.
FACTUAL AND PROCEDURAL SUMMARY
Michael is the presumed father of Adam. In July 2009, Adam was 11 months old, Michael was incarcerated, and Adam's mother (mother) had been receiving voluntary services related to her substance abuse. Mother was ejected from a clean and sober living facility when she relapsed.
A petition pursuant to Welfare and Institutions Code section 300, subdivisions (b) and (g) was filed on behalf of Adam. The petition alleged that Michael was incarcerated and that both parents had a history of substance abuse and had failed treatment. It also alleged that Adam had chronic respiratory problems and had been hospitalized.
All further statutory references are to the Welfare and Institutions Code unless otherwise stated.
Adam was detained on July 24, 2009. The detention report noted mother had reported that Michael was an enrolled member of the Hopi tribe (the tribe). The social worker had requested enrollment information from Michael's family. The case was set for a jurisdictional/dispositional hearing on August 24, 2009, to allow for notice to the tribe. Notice pursuant to the Indian Child Welfare Act of 1978 (ICWA; 25 U.S.C. § 1901 et seq.) was sent on August 3, 2009, to the Hopi and Maidu tribes; mother reported her family was Maidu. The notice indicated that Adam had received checkups at the tribe's health clinic during the first two months of his life. On August 11, 2009, the tribe signed the certified mail receipt for the notice.
The social study for the jurisdictional/dispositional hearing filed on August 20, 2009, noted that the social worker was still waiting for enrollment information from Michael's family. The Hopi Tribe Indian Services had notified the social worker that the tribe was doing enrollment verification to determine Adam's eligibility. The social study set forth the lengthy criminal history of both parents. Relative placement letters were sent to mother's and Michael's family members; two responded but they had either a criminal record or substance abuse issues and could not be approved. Adam was in foster care.
On August 24, 2009, Michael had been released from custody and the section 300, subdivision (g) allegation was stricken. Michael appeared at the
jurisdictional/dispositional hearing and reiterated he was an enrolled member of the tribe. He did not know his enrollment number, but stated he could fax it to the social worker. The matter was set for a contested hearing on September 10, 2009. The tribe did not appear at the August 24 hearing.
On September 10, 2009, Michael did not appear at the contested hearing. Mother waived her right to a hearing. The Stanislaus County Community Services Agency (Agency) submitted on the social study and the ICWA report that had been filed. The juvenile court sustained the petition, removed Adam from his parents' custody, and scheduled a six-month review hearing.
The social worker noted that the Agency was attempting to place Adam with his maternal grandmother, in compliance with ICWA placement preferences. The maternal grandmother, however, was ill and could not accept placement immediately. On October 26, 2009, the Agency sent notice of a progress review hearing scheduled for November 13, 2009, to the tribe. The report for the hearing indicated that Adam had been verified by the tribe as being eligible for membership. Adam was in a non-Indian placement because a relative was preparing her home for placement. Michael again was incarcerated and mother was in an in-patient drug program.
A six-month review hearing was set for February 5, 2010. Notice of the hearing was sent to the tribe on January 21, 2010.
In the six-month review report, the social worker stated that she had been contacted by Maude Yoyhoeoma, the ICWA social worker for the tribe. Adam had been moved to an Indian foster home in Sacramento to comply with ICWA; Adam was later moved to his maternal grandmother's home. After a brief placement in his maternal grandmother's home, the maternal grandmother stated she could no longer care for Adam. Adam was then placed back in the original foster home in Stanislaus County. This was all reported to Yoyhoeoma, who stated her recommendation at that time was to keep Adam in his current placement and avoid multiple moves while the tribe assessed whether to intervene.
At the six-month review hearing, neither parent was in compliance with the reunification plan and Michael was still incarcerated. Despite the parents' poor performance, the social worker recommended an additional six months of reunification services for the parents. Adam's counsel opposed the recommendation and the matter was set for a contested hearing.
On February 18, 2010, the juvenile court was informed that the tribe was attempting to make a determination on whether to intervene based on blood quantum; the tribe requested Adam's birth certificate, although that had been provided to the tribe on December 3, 2009. Michael offered to help work on the enrollment issue with the tribe. The contested hearing was continued in order to provide notice to the tribe of a change in recommendation from continuation of services to termination of services.
On March 4, 2010, a stipulation was reached by the parties to continue services for six more months. The juvenile court stated that the tribe had wanted to participate in the hearing by phone but, because the matter was trailed, the tribal representative was not available. The juvenile court asked the Agency to contact the Hopi tribe to see if it wanted to transfer the case to the tribal court.
On June 29, 2010, the Agency filed a section 388 petition seeking to terminate services and set a hearing on a permanent plan. The juvenile court scheduled a hearing on the petition to coincide with the scheduled 12-month review hearing set for August 2010. Notice was sent to the tribe on July 15, 2010.
The report for the 12-month review hearing noted that the social worker had been in contact with Yoyhoeoma on multiple occasions, but the tribe still had not made a decision on whether to intervene or transfer the case. The social worker had sent Adam's application for enrollment in the tribe in March and again in July 2010 at the request of Yoyhoeoma. The Agency's recommendation was for termination of services and a plan of adoption for Adam. Yoyhoeoma still did not have any information on the Hopi tribe's intentions regarding intervention or transfer.
At the 12-month review hearing on August 6, 2010, Adam's foster parents had been accorded de facto parent status. The tribe did not participate. Mother's counsel stated that the tribe "may" be intervening. The social worker stated she had been informed that the tribal council would not make a decision on Adam's enrollment until September 2010. Mother asked for a contested hearing, which was scheduled for August 30, 2010.
At the August 30 contested hearing, neither parent appeared. The tribe, through Yoyhoeoma, appeared by telephone. Yoyhoeoma stated that Adam's enrollment application was complete; she was waiting for the tribal council to meet and assign an enrollment number. Yoyhoeoma was asked if the tribe intended to intervene. She stated she had sent a letter to the tribal prosecutor a week ago, who was working on intervention. Yoyhoeoma was confident the tribe would intervene.
When asked the tribe's intentions regarding placement, Yoyhoeoma stated mother had provided names of family members. If a family was found that would accept Adam, the tribe would transfer the case. Adam's counsel asked, "You have not yet decided to transfer the case?" Yoyhoeoma replied that the tribal prosecutor would do an intervention letter and inquiry would be made as to whether the tribal court would accept the case. If accepted, the case would be transferred. Yoyhoeoma had no idea of the timeframe involved to do this.
Adam's counsel then asked if the tribe would consider placing Adam with his current foster family and receiving more information about the family. Yoyhoeoma replied, "Yes, please. I would like information on everything that's going on with the child." Yoyhoeoma confirmed that she had had multiple contacts with the social worker and had recommended leaving Adam in his current placement to avoid multiple placements. Yoyhoeoma recommended Adam stay in his current placement until the tribe made a recommendation for future foster placement.
The juvenile court informed Yoyhoeoma that the current hearing was to terminate services, the parents were not in compliance with their plan, they had received 12 months of services while the norm with a child of Adam's age was six months, and the juvenile court was inclined to set a permanency hearing. Yoyhoeoma stated that if the hearing was to terminate services and not parental rights, she had no further input.
Prior to the conclusion of the hearing, Adam's counsel stated that the tribe "has waited an incredibly long time" to make a determination of whether to intervene or transfer the case and the delay had kept Adam "on hold." Adam's counsel urged the tribe to "move quickly to make a decision so that this child can have some permanency soon." At the conclusion of the hearing, the juvenile court terminated services and set a section 366.26 hearing with the preferred plan of adoption. The hearing was scheduled for January 21, 2011. A pretrial hearing was set for December 10, 2010, to determine where the matter was in reference to the tribe.
At the December 10 hearing, Yoyhoeoma no longer was with the tribe; the new tribal representative was Walter Edd. The juvenile court had been given two phone numbers for Edd. The court clerk tried to contact Edd on his office and cell phone numbers so that Edd could appear by telephone; he did not answer either phone. Adam's attorney noted that the tribe had not taken action to intervene or transfer the case and that Adam was bonded to his foster parents.
The section 366.26 hearing was confirmed for January 21, 2011. Notice of the hearing was sent to the tribe on December 16, 2010.
The report for the permanent plan hearing noted that as of September 2, 2010, Adam was an enrolled member of the tribe. The tribe, however, still had not notified the Agency whether it intended to intervene or transfer the case. The Agency report recommended termination of parental rights and adoption of Adam by his current foster family, with whom Adam had bonded. Adam referred to his foster parents as "mommy" and "daddy." He had been living with his foster parents since October 2009.
A report authored by Marilee Mai, who had qualified as an ICWA expert at the jurisdictional hearing, was included with the Agency's report. Mai did not find the placement with the foster parents to be ICWA compliant; however, she supported termination of parental rights. Earlier in the case Mai had spoken with Edd, who indicated the tribe intended to intervene and "possibly" transfer the case to the tribal court. Mai had been unable to establish recent contact with Edd.
On January 21, 2011, at the permanent plan hearing, the tribe appeared by phone through Edd. The juvenile court asked Edd whether the tribe intended to intervene; Edd responded "the Hopi tribe is asking to intervene at this time." The juvenile court indicated that if the tribe was intervening and intended to take some action in the case, "we really need to know and not be strung along because it really strings this poor child along."
County counsel, representing the Agency, had no objection to the tribe intervening at that point, although the tribe had not filed or served any paperwork to intervene. The tribe did object to a continuance. A recess was taken to fax reports to Edd that had been served on the tribe, but which he did not have. When the juvenile court reconvened, the judge referred to California Rules of Court, rule 5.482(a)(3), which allowed the tribe a 20-day continuance to prepare; Edd requested the 20-day continuance to prepare.
Michael was present at the January 21, 2011, hearing and stated he agreed Adam should be adopted by his de facto parents. When asked if he had a choice between Adam being placed in a Hopi-approved home or staying with the de facto parents, Michael responded that he preferred Adam stay with the de facto parents. The juvenile court continued the matter to February 25, 2011, but warned Edd that the juvenile court intended to proceed with this matter on that date.
Michael then asked what would happen with Adam if the tribe intervened. Edd replied, "[H]e could be left there or he could be brought back here. It just depends." Edd indicated that Michael's aunt had been contacted and was willing to accept Adam; Edd had to do a background check on her. Michael then stated, "That's what I want to happen."
On February 23, 2011, the tribe filed a two-page motion to intervene. A certificate attached to the motion and dated March 2, 2010, stated that Adam was one-fourth Hopi. On February 25, 2011, the date of the scheduled hearing on the permanent plan, mother's counsel was unavailable due to a family emergency. Edd appeared by phone; the juvenile court granted the motion to intervene.
Prior to concluding the February 25 hearing, the juvenile court ordered that any pleadings, including any pleadings by the tribe, had to be filed at least two weeks prior to the continued hearing date and served on all counsel in the case. The continued hearing was set for March 21, and the juvenile court ordered the minute order faxed to the tribe's counsel.
On March 7, the de facto parents, through Adam's counsel, filed a letter of Native American ancestry. The de facto family was part Cherokee, had taken Adam to a powwow, and was committed to familiarizing Adam with his Hopi heritage. Also on March 7, Michael filed a document stating that his aunt was the preferred placement.
County counsel filed a response to Michael's paperwork on March 11, noting Adam was in California, jurisdiction of the case was in California, Michael's aunt had made no request to the Agency for placement, and the tribe continued to consent to Adam's current placement and had not made any request to change placement.
On March 14, one week before the continued permanent plan hearing, the tribe filed a two-page motion to transfer the case to the tribe's children's court. On March 16, the Agency opposed the transfer, citing unreasonable delay by the tribe as good cause to deny the transfer.
On March 21, 2011, the case was called. Attorney Wanda Wilbur represented the tribe via telephone. Michael supported the tribe's motion; mother had "no position." Wilbur indicated that if the case was transferred, Adam would be placed in Arizona with a relative; the tribe no longer would agree to placement with the current de facto parents.
The juvenile court set an evidentiary hearing for May 10, 2011, to address the Agency's assertion of unreasonable delay. A briefing schedule also was set by the juvenile court.
On April 5, Adam's counsel filed opposition to the tribe's motion to transfer. On April 21, the tribe sought an extension of time to respond to opposition to the motion to transfer but did not serve Adam's counsel with its request. The juvenile court set a hearing via telephone for April 26 on the tribe's request for an extension. On April 26, the juvenile court granted the tribe an extension to and including May 3 to file a response; the evidentiary hearing remained set for May 10.
On May 3, the Agency filed an addendum report that included a bonding study. Cheryl Carmichael, Ph.D., prepared the bonding study. Carmichael opined that "There is no question that [Adam's] primary attachment is to the foster mother first and foremost." Adam suffered emotional withdrawal and separation anxiety when separated from the foster mother, which Carmichael believed was primarily the result of Adam's multiple placements before being returned to the foster mother. Carmichael concluded, "To move this child again would be detrimental to his continued growth and development and his ability to firmly attach and trust his caretakers."
Also on May 3, the tribe filed a reply to the opposition to transfer. The tribe offered no explanation or excuse for the delay but merely stated that under ICWA the tribe was in the best position to determine what was in Adam's best interests.
At the May 10 evidentiary hearing, Adam's social worker Nancy Griggs testified. Griggs stated that she had placed Adam with his current foster family on October 20, 2009; no party, including the tribe, had asked her to change the placement. On December 3, 2009, the tribe's social worker, Yoyhoeoma, told Griggs to leave Adam in his current placement, even though Griggs made it clear this was not an ICWA-compliant placement. Edd never contacted Griggs about changing Adam's placement. Michael's aunt never asked to be considered for placement and the tribe never asked the Agency to consider her. The tribe declined to present any evidence.
After argument by the parties, the juvenile court ruled, stating, "the Court is going to find good cause not to grant the transfer given the fact that there has been a substantial delay in the filing of the motion to transfer." The juvenile court found the "delay has been too significant ... given the length of time that has elapsed."
The tribe did not appeal. Michael filed an appeal of the order denying the transfer of the case.
DISCUSSION
Michael contends substantial evidence did not support the juvenile court's finding of good cause to deny the tribe's request to transfer the case to the tribal court. While we question whether Michael has standing to appeal the denial of the tribe's motion, we conclude substantial evidence supported the juvenile court's finding of good cause to deny it.
I. Standing
We recognize the numerous opinions in which parents successfully have challenged the lack of notice pursuant to 25 United States Code section 1912 to a tribe or the Bureau of Indian Affairs (BIA) when there was reason to believe a minor may be an Indian child. (See, e.g., In re Desiree F. (2000) 83 Cal.App.4th 460 (Desiree F.); In re Kahlen W. (1991) 233 Cal.App.3d 1414 (Kahlen W.).) Here, however, Michael is not challenging a lack of notice; he appeals from a ruling on the tribe's motion for removal.
Standing is a jurisdictional requirement for our review of an appellant's claim. (Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295.) Although a parent generally can appeal judgments or orders in juvenile dependency matters (In re Carissa G. (1999) 76 Cal.App.4th 731, 734 (Carissa G.)), a parent cannot raise issues on appeal from a dependency matter that do not affect his or her own rights. (In re Devin M. (1997) 58 Cal.App.4th 1538, 1541.)
A parent taking a position on an issue in a dependency case does not, by itself, constitute a sufficient basis on which to establish standing and challenge an adverse ruling. (Carissa G., supra, 76 Cal.App.4th at p. 736.) Issues that do not affect the parent's own rights may not be raised in the parent's appeal. (In re Vanessa Z. (1994) 23 Cal.App.4th 258, 261.)
The removal motion may have affected Adam's and the tribe's rights, but Michael has failed to explain how the denial of the tribe's motion has affected his rights. Reunification services for Michael had been terminated several months before the removal motion was filed and there was no possibility of placing Adam with Michael; Michael was due to be incarcerated in state prison at the conclusion of the hearing. Neither the tribe nor Adam has appealed the ruling on the removal motion. Michael has cited no case that allows a parent to assert a tribe's right, other than the right to notice; notice was given in Adam's case.
However, as the Agency has not sought dismissal of this appeal based upon a lack of standing by Michael, we will address the merits.
II. Finding of Good Cause to Deny Transfer
Standard of review
We review the juvenile court's finding of good cause to deny a motion to transfer pursuant to 25 United States Code section 1911(b) for substantial evidence. (In re Robert T. (1988) 200 Cal.App.3d 657, 663 (Robert T.).) We review the evidence in the light most favorable to the juvenile court's order, drawing every reasonable inference and resolving all conflicts in favor of the prevailing party. (In re Misako R. (1991) 2 Cal.App.4th 538, 545.)
ICWA overview
ICWA was enacted in 1978 "out of an increasing concern in the mid-1970's over the consequences to Indian children, Indian families, and Indian tribes of child welfare practices that separated large numbers of Indian children from their families and tribes, and placed them in non-Indian homes through state adoption, foster care, and parental rights termination proceedings. [Citation.]" (In re Santos Y. (2001) 92 Cal.App.4th 1274, 1299.) In adopting ICWA, Congress established minimum federal substantive and procedural standards to protect the interest of an Indian child and promote the stability and security of Indian tribes and families. (Kahlen W., supra, 233 Cal.App.3d at p. 1421.)
"Notice is a key component of the congressional goal to protect and preserve Indian tribes and Indian families. Notice ensures the tribe will be afforded the opportunity to assert its rights under [ICWA] irrespective of the position of the parents, Indian custodian or state agencies." (Kahlen W., supra, 233 Cal.App.3d at p. 1421.) Notice also affords the tribe the right to transfer jurisdiction over the proceedings to the tribal court or intervene in the state court proceedings. (Ibid.; see 25 U.S.C. §§ 1911, 1912.)
The right to transfer a dependency proceeding to a tribal court is not absolute. (25 U.S.C. § 1911(b).) Title 25 United States Code section 1911(b) provides that "the court, in the absence of good cause to the contrary, shall transfer such [dependency] proceeding to the jurisdiction of the tribe, absent objection by either parent ...." Whether good cause existed to deny the tribe's motion to transfer is the crux of this appeal.
"Good cause" analysis
Although the term "good cause" is not defined in 25 United States Code section 1911(b), the BIA published guidelines for ICWA. (Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg. 67,584 et seq. (Nov. 26, 1979) (Guidelines).) Those Guidelines state that insertion of "good cause" into the statute was "designed to provide state courts with flexibility in determining the disposition of a placement proceeding." (Guidelines, 44 Fed.Reg. 67,584.)
The Guidelines further state that a request to transfer jurisdiction of a dependency proceeding from a state court to a tribal court "shall be made promptly after receiving notice of the proceeding." (Guidelines, 44 Fed.Reg. 67,590.) Good cause to deny the transfer exists when a party who could have filed a removal request earlier in the case "waits until the case is almost complete to ask that it be transferred." (Ibid.) The criteria set forth in the Guidelines for establishing good cause to deny a transfer request include: "The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing." (Id. 67,591.)
Section 305.5, subdivision (c)(2)(B) follows the Guidelines and provides good cause to deny a transfer request exists when the "proceeding was at an advanced stage" and "the petitioner did not file the petition within a reasonable time after receiving notice of the proceeding."
Here, the tribe's request to transfer Adam's case to the tribal court was not filed within the timeframe contemplated by the Guidelines as it was not filed promptly after receiving notice of the proceedings. (Guidelines, 44 Fed.Reg. 67,590.) The tribe received notice of the proceedings on August 11, 2009; the transfer request was filed 17 months later on March 14, 2011. Failure to request a transfer of the case promptly is good cause to deny the request. (Ibid.)
The request to transfer the proceeding was filed one week before the continued section 366.26 hearing; the section 366.26 hearing had been continued twice from its initial date, the first time at the tribe's request. Adam's case was nearing a conclusion, as indicated by the setting of the section 366.26 hearing. Waiting until the case is "almost complete" before requesting a transfer of the proceedings is yet another ground supporting a finding of good cause to deny the transfer request. (Guidelines, 44 Fed.Reg. 67,590.)
Adam's case was at an advanced stage when the transfer request was filed and the tribe was aware that a permanent plan hearing had been set to terminate parental rights and allow Adam to be adopted by his foster parents. Notice of the section 366.26 hearing was served on the tribe on December 16, 2010. The tribe's representative, Edd, appeared by telephone at the January 21, 2011, section 366.26 hearing. Yet, the tribe waited nearly three months from the date of notice of the section 366.26 hearing and nearly two months from the initial hearing before seeking to transfer the case. The failure of the tribe to file a request to transfer the proceedings promptly after receiving notice of the section 366.26 hearing is another ground supporting a finding of good cause to deny the transfer request. (Guidelines, 44 Fed.Reg. 67,591.)
The tribe also failed to file its transfer request promptly after reunification efforts failed. Notice that the Agency was seeking to terminate reunification services and had set a section 366.26 hearing was sent to the tribe on July 15, 2010. At the August 30, 2010, hearing on the termination of services, the tribe appeared by telephone through its representative, Yoyhoeoma. The juvenile court terminated reunification services on August 30, 2010, and set the scheduled section 366.26 permanent plan hearing. The tribe waited more than six months after it was aware reunification services had been terminated and a section 366.26 hearing set before filing its transfer request on March 7, 2011.
While waiting until reunification services have been terminated to request a transfer is not itself good cause, pursuant to the Guidelines and Welfare and Institutions Code section 305.5; delaying for over six months after services have been terminated can constitute good cause. (Welf. & Inst. Code, § 305.5, subd. (c)(2)(B); Guidelines, 44 Fed.Reg. 67,591.) The commentary to the Guidelines states that inclusion of a time requirement for the tribes to act "is designed to encourage the prompt exercise of the right to petition for transfer in order to avoid unnecessary delays." (Guidelines, 44 Fed.Reg. 67,591.)
It is the juvenile court's duty to assure compliance with ICWA. (Desiree F., supra, 83 Cal.App.4th 460 at pp. 471-472.) The judicial officer presiding over Adam's case did an exemplary job of assuring that the tribe's rights under ICWA were protected by repeatedly making sure notice was afforded the tribe at every stage of the proceedings, allowing the tribe to appear by telephone and participate in the case prior to the filing of a request to intervene, and granting continuances at the tribe's request.
Adam's case is vastly different from the case of Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, upon which Michael relies. In the Mississippi Band of Choctaw Indians case, the state court completely ignored the provisions of ICWA. (Mississippi Choctaw Indians, at p. 36.) Here, the Agency promptly and repeatedly notified the tribe of the filing of the section 300 petition and all subsequent hearings in Adam's case and the judicial officer assured the tribe's rights were protected under ICWA.
In addition to the Guidelines promulgated by the BIA that set forth grounds for a good cause denial of a petition to transfer jurisdiction, the case of Robert T., supra, 200 Cal.App.3d 657 addressed whether a request to transfer jurisdiction to a tribe should be granted or denied. The Robert T. court held that "this determination must be made on a case-by-case basis" and "should at least precede permanency planning in the dependency proceedings." (Id. at p. 665.)
The Robert T. court further explained, "While the tribal court is the preferred jurisdiction under [ICWA], the tribe cannot unreasonably delay its request for transfer" and opined that the need for timeliness set forth in the Guidelines was a reflection of "concern for the best interests of the Indian child. [Citation.]" (Robert T., supra, 200 Cal.App.3d at p. 665.) The Robert T. court noted that the stated purpose of ICWA was to "'protect the best interests of Indian children'" and that "this is a pertinent and indeed a necessary consideration in deciding whether to grant or deny a transfer request." (Robert T., at p. 667.)
The Agency's report for the section 366.26 hearing stated that over the past several months Adam had bonded with his foster parents, who wished to adopt him, and the expert opinion of the psychologist who examined Adam was that removing him from his foster parents would be detrimental to Adam.
Michael lists a number of reasons why there was no unreasonable delay on the part of the tribe, including a change in its social workers, lack of expertise by its social workers, and lack of resources by the tribe. This entire portion of his argument is based on pure speculation and is unsupported by the evidence. We therefore reject it summarily. We note, however, that the Hopi Children's Code, which is quite detailed, envisions prompt hearings in child dependency proceedings and placement decisions that factor in the best interests of the child. (Hopi Children's Code, ch. IV, pt. D.3. [hearing on termination of parental rights is to be set not more than 15 days after the filing of a petition to terminate rights], ch. V, pt. H.9. [disposition order must not be contrary to minor's best interest].)
See <http://www.narf.org/nill/Codes/hopicode/child.htm> [as of Jan. 31, 2012].
We also reject summarily Michael's equitable estoppel argument that the Agency and Adam's social worker were under a duty to explain to the tribe the consequences and legal ramifications of the tribe's decisions and inaction. There is no provision in ICWA that we have found, and Michael has cited none, that charges the Agency or the Agency's social worker with explaining to any tribe the ramifications under ICWA of the tribe's decisions and inaction in a state dependency proceeding. The Agency and social worker are charged with providing notice to the tribe; notice was provided in abundance to the tribe. (25 U.S.C. § 1912(a).) Moreover, the judicial officer and Adam's counsel requested on more than one occasion that the tribe make an expeditious determination of what it was going to do in Adam's case; the tribe continued to delay.
Conclusion
The juvenile court's finding that good cause existed to deny the request of the tribe to transfer jurisdiction was supported by substantial evidence. (Robert T., supra, 200 Cal.App.3d at p. 663.)
DISPOSITION
The juvenile court's order denying transfer of the case to the tribe's tribal court is affirmed.
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CORNELL, J.
WE CONCUR:
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WISEMAN, Acting P.J.
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GOMES, J.