Filed 10/5/15 Certified for publication 11/4/15 (order attached)




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    FIFTH APPELLATE DISTRICT

In re SADIE S. et al., Persons Coming Under the
Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF                                                    F070288
SOCIAL SERVICES,
                                                                    (Super. Ct. Nos. 11CEJ300086-2,
         Plaintiff and Respondent,                                 11CEJ300086-3 & 11CEJ300086-4)

                  v.
                                                                             OPINION
JIMMIE S.,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Fresno County. Jane Cardoza,
Judge.
         Seth F. Gorman, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Daniel C. Cederborg, County Counsel, and Amy K. Cobb, Deputy County
Counsel, for Plaintiff and Respondent.
          Father Jimmie S. appeals from a judgment entered pursuant to Welfare and
Institutions Code section 366.26,1 selecting tribal customary adoption (TCA), as the
permanent plan for his children, Sadie, Tyler and Savannah. Father contends that the
juvenile court erred in affording the TCA order full faith and credit because the Indian
tribe at issue did not have subject matter jurisdiction and he was denied procedural due
process. We find no merit to his contentions and affirm.
                     FACTUAL AND PROCEDURAL BACKGROUND
          The Fresno County Department of Social Services (department) filed a section 300
petition on May 2, 2011, alleging Sadie and Tyler were at risk of harm due to mother and
father’s ongoing domestic violence.2 Notice was provided to the juvenile court
indicating the children were of Indian heritage pursuant to the Indian Child Welfare Act
of 1978 (ICWA) (25 U.S.C. § 1901 et seq.). The children were detained and jurisdiction
scheduled for May 31, 2011.
          The Northfork Rancheria of Mono Indians of California (Tribe),3 in response to
ICWA notification, filed two resolutions on June 21, 2011—one stating Sadie and Tyler
were Indian children and that the Tribe would intervene in the case and another
requesting that Sadie and Tyler be placed with paternal grandmother, Gay R. At the
contested jurisdiction hearing on June 21, 2011, the department recommended that Sadie



1         All further statutory references are to the Welfare and Institutions Code unless otherwise
stated.
2       Another child, S.O., was involved in the early stages of the case, but she was returned to
her father, Chad O., who was subsequently awarded full custody. The children’s mother is not a
party to this appeal.
3       The official name of the Tribe is identified as “Northfork Rancheria of Mono Indians of
California.” (80 Fed.Reg. 1942, 1945 (Jan. 14, 2015).) The Tribe’s official name had previously
been identified as “North Fork Rancheria of Mono Indians,” which is how the Tribe is listed in
the caption of its TCA order applicable here. (79 Fed.Reg. 72009, 72025 (Dec. 4, 2014).)


                                                  2.
and Tyler be placed with a maternal aunt, Kristy C.,4 because paternal grandmother did
not pass the criminal background check.
        At disposition on September 22, 2011, Geni Cowan, an Indian Child Welfare
expert, testified via telephone that, in her opinion, the children would suffer serious
emotional or physical damage if they were to continue in the care and custody of their
parents, that reasonable efforts were provided the parents to prevent the removal and
breakup of the family, and that the children were appropriately placed with Kristy C. The
juvenile court found removal of Sadie and Tyler from mother and father necessary,
placement of the children with Kristy C. appropriate, and that the children were Indian
children within the meaning of ICWA and the Tribe.
        At the six-month review hearing on April 19, 2012, the juvenile court terminated
services for mother, finding reasonable services had been offered but that her progress
was minimal and she failed to reunify within the six-month statutory timeframe. Services
for father were continued. A 12–month review hearing was set.
        In the meantime, a section 300 petition was filed alleging mother and father’s
newborn daughter, Savannah S., born in May 2012, was prenatally exposed to drugs.
Savannah was detained at birth and subsequently placed with Sadie and Tyler in the
home of Kristy C.
        On February 14, 2013, after numerous continuances waiting to receive responses
from various tribes noticed in regards to Savannah, the juvenile court sustained
jurisdiction on Savannah. The juvenile court terminated father’s reunification services as
to Sadie and Tyler and set a section 366.26 selection and implementation hearing for
them.




4      The spelling of the maternal aunt’s name in the record varies, including Christy C.,
Kristy C., Kristi C., and Kristie C. We will refer to her as Kristy C.


                                               3.
       The department, in its report prepared for the October 30, 2013 disposition hearing
on Savannah, stated father was “actively engaged in culturally appropriate services as
offered at the Sierra Tribal Consortium, also known as Turtle Lodge,” and recommended
reunification services be provided him for Savannah. The report prepared for an interim
hearing for Sadie and Tyler recommended continuing the case for 180 days to develop a
TCA plan and home study. On October 31, 2013, the juvenile court ordered reunification
services be provided father for Savannah, but denied services for mother. Within the next
month, father missed several visits with the children, failed to attend Savannah’s medical
appointments, and failed to complete his treatment programs. Father’s reunification
services were terminated as to Savannah on December 19, 2013, and the matter was set
for a section 366.26 hearing.
       Over the course of the case, the department, the Tribe, Kristy C., and father all had
fluctuating views as to what type of permanent plan would be best for the children. By
the time of the July 11, 2014, section 366.26 permanent planning hearing for all three
children, the department and Tribe were in agreement with the recommendation of TCA.
After several objections by father to the terms of the agreement, and numerous
continuances, the TCA order was afforded full faith and credit by the juvenile court on
September 23, 2014.
       The TCA order in the record states that the Tribal council “received and reviewed
reports, declarations, pleadings and documents provided by the Tribe’s ICWA
representative, the parties and Social Workers from Fresno County regarding this case.
The Tribal Council is knowledgeable about this matter, the parents, the children and the
[TCA] parent, Kristy C[]. The case was also discussed in several executive sessions
during Tribal council meetings.” The order further states “the Tribe’s ICWA
representative, Renee Getty, has spoken to all counsel of record regarding the [TCA] and
all parties have had an opportunity to provide input to the Tribe regarding the children’s
best interests.”

                                             4.
       In its findings, the TCA order states, “As an exercise of its inherent sovereignty,
the Tribe, by and through its governing body, the Tribal Council, has the authority and
jurisdiction to formally order a permanent plan of [TCA] of the children .…” It further
states, “The Tribe possesses the inherent authority to make decisions regarding the best
interests of its children including who should provide care, custody and control of its
children.”
       The TCA order allowed father visitation provided certain conditions were met,
including that he provide satisfactory evidence to the Tribal Council that he was drug free
and sober for a minimum of six months; that he may not visit if he has an outstanding
warrant or is on probation; that the visits be supervised by a third party; that he must
abide by the policies and procedures established by the Tribe; that, if he fails to appear at
three consecutive visits, future visitation will be suspended; and, if a child does not wish
to visit, the visit will not be forced upon the child.
       The TCA order stated Kristy C. would be the children’s “legal parent,” but that the
children retained their full inheritance rights from mother and father. The TCA order
further stated, “All rights not specified herein shall vest with the [TCA] parent,
Kristy C[].”
                                        DISCUSSION
       At issue in this appeal is the TCA order. Father is primarily unhappy with the
visitation conditions in the TCA order requiring that he drug test before visitation
because he claims to have a medical marijuana prescription, which should be taken into
consideration. Because father raises several issues relating to the TCA process, we
briefly describe the purpose and process of a TCA as it is set forth in the relevant statutes.
We then address father’s specific contentions that the juvenile court erred in affording the
TCA order full faith and credit because: (1) the order was not made in conformity with
ICWA’s jurisdictional requirements and (2) the order was not made in proceedings
consistent with principles of constitutional due process.

                                               5.
TCA
       TCA has been an alternative placement plan for Indian children in California since
July 2010. (Stats. 2009, ch. 287, § 12; see In re H.R. (2012) 208 Cal.App.4th 751, 759
(H.R.).) TCA “is an alternative to a standard adoption and protects both the Tribe’s and
the child’s interests in maintaining tribal membership by formalizing an adoption by an
individual selected by the Tribe without terminating parental rights.” (In re A.M. (2013)
215 Cal.App.4th 339, 348.) The Legislature provided for TCA’s in part because:

       “‘[T]he termination of parental rights which is currently a prerequisite to
       adoption of a child is “totally contrary to many tribes’ cultural beliefs and it
       is, in fact, associated with some of the most oppressive policies historically
       used against tribes and Indian people …[.]” By contrast, historically and
       traditionally, most tribes have practiced adoption by custom and ceremony.
       In addition, the termination of parental rights can disrupt the child’s ability
       to be a full member of the tribe or participate fully in tribal life.’” (H.R.,
       supra, at p. 761.)
In a TCA, the adoptive parents may be ordered to provide the child with opportunities to
participate in tribal culture. (See id. at p. 757.)
       Section 366.24 sets forth the procedures to institute a TCA as an alternative
permanent plan for Indian children.5 First, the assessment report for the selection and
implementation hearing must address the TCA option. (§§ 366.21, subd. (i)(1)(H),
366.24, subd. (b).) If the tribe decides that TCA is the appropriate alternative, the tribe or
its designee conducts a home study prior to approval of the TCA placement. (§ 366.24,
subd. (c)(1), (2) & (3).) This assessment and the TCA order from the tribe should be
completed and filed with the juvenile court prior to the selection and implementation
hearing. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (c)(6).) However, if necessary, the
juvenile court may continue the selection and implementation hearing to permit the tribe


5        Rules of Court addressing TCA also became effective in July 2010. (Cal. Rules of Court,
rules 5.708(g)(3), 5.715(b)(5), 5.720(b)(4), 5.722(b)(3), 5.725(d)(1), (d)(2)(C)(vi), (d)(8)(C),
(e)(2), (e)(4).)


                                               6.
to complete the process. (§ 366.24, subd. (c)(6).) The child, birth parents, or Indian
custodian and the TCA parents and their counsel may present evidence to the tribe
regarding the TCA and the minor’s best interest. (§ 366.24, subd. (c)(7).) Once the
juvenile court affords full faith and credit to the TCA order, the child is eligible for TCA
placement. (§ 366.24, subd. (c)(8).) After the order has been afforded full faith and
credit, the TCA parents file an adoption petition. (§ 366.24, subd. (c)(12).) Following
required reports to the court, a period of supervision, and a final decree of adoption, the
TCA parents have the same rights as any other adoptive parent and the court terminates
jurisdiction over the child. (§ 366.24, subd. (c)(12), (13) & (14).)
       Consideration of TCA is not required under ICWA, but it is required by state law
enacted pursuant to ICWA’s authorization to states to provide a higher standard of
protection than the rights provided under ICWA. (In re G.C. (2013) 216 Cal.App.4th
1391, 1400.) The requirement that the court afford the TCA order full faith and credit
does not place a restriction on the court’s discretion to select the most appropriate
permanent plan. Rather, the reference to full faith and credit provides the rationale and
authorization for effecting an adoption without terminating parental rights, should the
court select TCA as the permanent plan. (H.R., supra, 208 Cal.App.4th at p. 765.)
Normally adoption cannot be effected unless and until parental rights are terminated.
(See, e.g., Cal. Rules of Court, rule 5.725(g) [“The rights of all parents—whether natural,
presumed, biological, alleged, or unknown—must be terminated in order to free the child
for adoption.”].) By giving full faith and credit to the TCA order, a legal basis is created
for recognizing the TCA despite the failure to terminate parental rights. (H.R., supra, at
p. 765.)

       1.     Did the juvenile court err in affording the TCA order full faith and credit
              because the Tribe lacked subject matter jurisdiction?
       Father contends the juvenile court erred in affording the TCA order full faith and
credit because it was not made in conformity with ICWA’s jurisdictional requirements.


                                             7.
Specifically, father argues that the TCA order was not an order or judgment entitled to
full faith and credit because “the Tribe did not duly exercise subject matter jurisdiction
prior to the initiation of the dependency proceedings under 25 U.S.C. section 1911(a), or
by transfer under 25 U.S.C. section 1911(b).” In essence, father contends, “the Tribe
should not be entitled to control the juvenile proceedings and scope of the court’s orders
without first exercising that jurisdiction in conformity with the jurisdictional
requirements of the ICWA.” We disagree with father’s interpretation of the statutes at
issue.
         This issue involves a matter of statutory interpretation, which we review
independently. (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 254.)
         A “‘child custody proceeding,’” as that term is used in the ICWA, refers to
proceedings for foster care placement, termination of parental rights, preadoptive
placement, and adoptive placement. (25 U.S.C. § 1903(1); In re Junious M. (1983) 144
Cal.App.3d 786, 790.) In furtherance of the legislative purpose, the ICWA grants an
Indian tribe exclusive jurisdiction over any such proceeding involving an Indian child
who resides or is domiciled within its reservation (25 U.S.C. § 1911(a)). If the Indian
child is not domiciled or residing within the reservation, the state court proceeding is
transferred to the tribe, absent good cause to the contrary, upon petition of either parent,
Indian custodian or Indian child’s tribe (25 U.S.C. § 1911(b)). Once an action is
transferred to a tribal court, the state court loses all power to adjudicate the matter. (See,
e.g., In re M.M. (2007) 154 Cal.App.4th 897, 913 [transfer to tribal court under 25 U.S.C.
§ 1911(b) deprives state court of jurisdiction over dependency case, precluding appeal
from transfer order].) ICWA also entitles the tribe to intervene “at any point in the
proceeding” in the state court in cases that are not transferred (25 U.S.C. § 1911(c)).
         Father relies on our decision in In re Laura F. (2000) 83 Cal.App.4th 583
(Laura F.), in which we rejected mother’s argument that a resolution from the Tule River
Tribe stating, in essence, that “‘adoption of the child is not in the interest of the child’”

                                               8.
(Laura F., supra, at p. 591) was entitled to full faith and credit under ICWA. The
children at issue were not domiciled nor residing within any reservation of the tribe and
therefore the juvenile court and the tribe had concurrent jurisdiction over child custody
proceedings involving the children. (Id. at pp. 593–594.) However, the tribe never
exercised its jurisdiction over the children. Neither mother nor the tribe petitioned the
juvenile court to transfer the matter to the tribe’s jurisdiction (25 U.S.C. § 1911(b)), nor
did the tribe elect to intervene in the juvenile court proceedings (25 § U.S.C. 1911(c)).
We held that:

       “Because there was never any effort to transfer dependency jurisdiction to
       the Tribe, we are hard pressed to imagine how the Tribe’s resolution could
       have amounted to a judgment or other enforceable order. Thus, we have
       concluded the resolution was neither a judgment nor other order entitled to
       res judicata or collateral estoppel effect in the juvenile court under the
       ICWA’s full faith and credit provision.” (Laura F., supra, at p. 594.)
       We find father’s reliance on Laura F. misplaced. First, Laura F. involved a tribal
resolution, not a TCA order. In fact, the case was decided in August 2000, almost
10 years before the enactment of TCA legislation.
       Second, father has provided us with no authority that the Tribe was required to
petition the juvenile court to transfer the proceedings to the Tribe’s jurisdiction (25
U.S.C. § 1911(b)) in order for the juvenile court to afford full faith and credit to the TCA
order. In fact, the plain language of section 366.24 addressing the purpose and process of
TCA’s indicates otherwise. As noted, ante, if the Indian child is a dependent of the
juvenile court and the tribe determines that TCA is the appropriate alternative, the tribe or
its designee conducts a home study prior to approval of the TCA placement. (§ 366.24,
subd. (c)(1), (2) & (3).) This assessment and the TCA order from the tribe are then
completed and filed with the juvenile court prior to the selection and implementation
hearing. (§§ 366.21, subd. (i)(1)(H), 366.24, subd. (c)(6).) If the juvenile court
determines that TCA is in the child’s best interests, it then affords full faith and credit to



                                              9.
the TCA order, and the child is eligible for TCA placement. (§ 366.24, subd. (c)(8).)
After the order has been afforded full faith and credit, the TCA parents file an adoption
petition. (§ 366.24, subd. (c)(12).) Following required reports to the juvenile court for a
period of supervision and a final decree of adoption, the TCA parents have the same
rights as any other adoptive parent and only then does the juvenile court terminate
jurisdiction over the child. (§ 366.24, subd. (c)(12), (13) & (14).) Thus, plainly, juvenile
court jurisdiction extends throughout the proceedings and does not terminate until a final
decree of adoption is awarded.
       “When statutory language is clear and unambiguous there is no need for
construction and the courts should not indulge in it. [Citation.]” (In re Alicia S. (1998)
65 Cal.App.4th 79, 89–90.)
       Further, as expressed in “All County Letter No. 10-47” issued by the California
Department of Social Services (CDSS) on October 27, 2010 (All County Letter):6

       “TCA is a permanency option for any ‘Indian Child’ (as defined in ICWA)
       whose tribe wants to pursue TCA as a permanency option. Under ICWA,
       and the state laws implementing ICWA, an Indian child’s tribe does not need
       to formally intervene in a case in order to be entitled to make representations
       to the agency and the court as to the appropriate permanent plan for that
       child. (See the California Rules of Court, Rule 5.534 (i)(2)[.)]” (CDSS, All
       County Letter No. 10-47 (Oct. 27, 2010) § 3.4, p. 12
       <http://www.cdss.ca.gov/lettersnotices/entres/getinfo/acl/2010/10-47.pdf>
       [as of Oct. 5, 2015].)
       We therefore reject father’s contention that the juvenile court erred in affording
the TCA order full faith and credit because the Tribe “did not duly exercise subject
matter jurisdiction prior to the initiation of the dependency proceedings under 25 U.S.C.
section 1911(a), or by transfer under 25 U.S.C. section 1911(b).”


6        Assembly Bill 1325 (2009-2010 Reg. Sess.) provides that “the Department of Social
Services may implement and administer the applicable provisions of this act through all-county
letters or similar instruction from the director until such time as the regulations are adopted.”
(Stats. 2009, ch. 287, § 26.) No such regulations have yet been adopted.


                                               10.
       2.     Did the juvenile court err in affording the TCA order full faith and credit
              because the tribal orders were made in violation of due process?
       Father also alleges the juvenile court erred in affording the TCA order full faith
and credit because he was not given an adequate opportunity to be heard on the terms of
the TCA order addressing visitation, violating his procedural due process. We find no
merit to father’s contention.
              Procedural background
       Over the course of the case, the department, the Tribe, Kristy C., and father all
fluctuated on what type of permanent plan would be best for the children. By the time of
the July 11, 2014, section 366.26 permanent planning hearing, the department and the
Tribe were in agreement with the recommendation that TCA was the appropriate
permanent plan. Father’s counsel agreed that father would prefer a TCA option to
straight adoption. Mother’s counsel asked for a continuance to consider the TCA option,
although counsel acknowledged a TCA would be in mother’s favor.7
       At the continued section 366.26 hearing on July 21, 2014, father submitted on the
TCA, but had some issues with the terms of the order, particularly concerning visitation
and drug testing. Father’s counsel stated that father “may” “change his mind … with a
hair test they’re recommending,” because that would prevent father from “having to call
everyday and having to worry about getting to the testing place everyday and having that
issue everyday having to try to deal with that.” Following an off-the-record discussion in
chambers, the juvenile court indicated that “[e]veryone seems to agree that we can … go
forward with [the] permanent plan.” But the court also noted uncertainty as to what its
role was in the details of the agreement:

       “The details of that may be subject of a contest yet on father’s part that the
       Court should hear some detailed argument as to best interest of the children
       in that [TCA] and the Court, I believe, we may need briefing. I would
       invite it but if not that’s fine. The Court has full power to modify the

7      Presumably because a TCA does not terminate parental rights.


                                             11.
       details of the agreement. Fine. There may be subject powers in the Court.
       Maybe within tribal jurisdiction or maybe something the parties have to
       resolve themselves as a detail[] the Court would ordinarily not be involved.
       [¶] This Court documents the permanent plan and the details of that with
       the tribal involvement. Maybe something outside the purview of this
       Court. I’m happy to hear it, have it argued, and resolve those if they cannot
       be resolved outside my direct supervision or decision making.”
The juvenile court found TCA was the appropriate permanent plan and continued the
section 366.26 hearing to allow for the statutory time requirements.
       At the continued section 366.26 hearing on September 2, 2014, the juvenile court
stated the hearing was for the purpose of the “actual terms” of the TCA. The Tribe’s
representative provided the juvenile court with the TCA order. Counsel for the
department stated that it was his understanding that, if the juvenile court provided full
faith and credit to the order, the juvenile court could not modify the order “as it is enacted
by a different legal entity that indicates that it recognizes the[ir] authority to do so.” The
juvenile court stated that it was likely to accept the order as is, but would still review it to
see if there was anything in it that “we have had agreement to modify as a group.”
       Counsel for the department argued that father’s disagreement with the terms
should not impact the juvenile court’s decision, alerting the juvenile court to
section 366.24, subdivision (c)(11), which states, “Prior consent to a permanent plan of
[TCA] of an Indian child shall not be required of an Indian parent or Indian custodian
whose parental relationship to the child will be modified by the [TCA].”
       Counsel for father, who was not present, asked for a continuance to allow father
“some time to actually look at what the orders were going to be.” The request for a
continuance was denied. Counsel for father then stated she did have “something else”
she needed to say. After a discussion off the record, the juvenile court noted father was
now present and stated:

       “There’s no agreement from dad as to the terms and conditions of the
       [TCA] and agreement and there’s details the Court chooses not to disturb.
       There is a request to continue the matter further. I’m told [father’s] issue of


                                              12.
       sobriety vis-à-vis medical marijuana has already been addressed. The
       Court does not find good cause to continue but I’m also told by the
       Department that the law requires greater degree of notice. Additional
       addendum report technically before all is in order and therefore the Court’s
       hands are bound to find good cause to continue this matter. The Court will
       find what it needs for the second addendum report time wise.”
The juvenile court then continued the hearing for the additional statutorily required days,
pursuant to section 366.26, subdivision (c)(6).
       At the continued section 366.26 hearing on September 23, 2014, the juvenile court
again considered the TCA order. Counsel for the department argued that as long as
father, who was objecting to the visitation recommendations in the TCA, was “given
notice within the [T]ribe and opportunity to be heard regarding the matter, that the Court
must give full faith and credit to the order and then proceed forward with the [TCA].”
When the juvenile court asked what was meant by “an opportunity to be heard,” counsel
said he was “not certain whether father can contest that matter here.… At the very least,
the Court has the right to consider it.” But, counsel asserted, father “has had ample
opportunity” to be heard because the case had been continued several times and father
had been in contact with the Tribe.
       Counsel for father acknowledged father had received adequate notice, but did not
think there had been a formal hearing within the Tribe in which father was allowed input.
While father’s counsel stated that father had had telephone contact with the Tribe,
counsel objected to the contention that he had had an opportunity to be heard “within the
[T]ribe before this [TCA] order was made.” In particular, father’s counsel objected to the
proposed order concerning visitation conditions, specifically drug testing requirements
regarding marijuana (father claimed to have a medical marijuana prescription) as it would
prevent him from visiting with his children. Father’s counsel stated that the other terms
of the order were “fine.”
       The representative for the Tribe stated that the Tribe did not have a “formal
hearing process,” but that it had had contact with father and father’s mother and it had


                                            13.
discussed father’s concerns about drug testing and marijuana use. According to the
representative, the Tribal council agreed that the TCA orders it was submitting “were the
ones that we want.”
       The juvenile court then found the TCA the appropriate permanent plan and
ordered that mother and father’s parental rights “are … modified in accordance with the
[TCA] order of the North Fork Rancheria of Mono Indians. Court is affording full faith
and credit to the [TCA] orders for the children, Sadie, Tyler, and Savannah S[.]”
              Applicable Law and Analysis
       Father argues that he was denied due process in the dependency proceedings
addressing the TCA and the juvenile court therefore erred in affording the TCA order full
faith and credit. We disagree.
       A TCA order entered by the tribal court does not necessarily preclude a juvenile
court in a dependency action regarding Indian children from selecting a different
permanent plan at the contested dispositional hearing after considering the relevant
evidence. But once TCA is selected as the child’s permanent plan, as it was here, the
juvenile court is required to give the TCA order full faith and credit. (H.R., supra, 208
Cal.App.4th at p. 767.)
       That said, section 366.24 set outs certain requirements that must be met in order
for a state court to afford a TCA order full faith and credit. Subdivision (c)(7) of
section 366.24 specifies:

       “The child, birth parents, or Indian custodial and the tribal customary
       adoptive parents and their counsel, if applicable, may present evidence to
       the tribe regarding the [TCA] and the child’s best interest.”
As evidenced, ante, from the recitation of the hearings dealing with the TCA, father was
given an opportunity to present evidence to the tribe regarding the TCA and his
children’s best interests. According to the Tribe representative present at the hearing, the
Tribe did not have a “formal hearing process,” but it had had contact with father and


                                             14.
father’s mother and it had discussed father’s concerns about drug testing and marijuana
use.8 And, according to the representative, the Tribal council agreed that the TCA orders
it was submitting “were the ones that we want.”
       We also note that Section 366.24, subdivision (c)(10) requires the TCA order to
address the issue of visitation, but it does not guarantee birth parents a right of visitation.
That section states, in pertinent part:

       “The [TCA] order shall include, but not be limited to, a description of
       (A) the modification of the legal relationship of the birth parents or Indian
       custodian and the child, including contact, if any, between the child and the
       birth parents or Indian custodian .…” (§ 366.24, subd. (c)(10), italics
       added.)
Visitation, therefore, was not something guaranteed father in a TCA.
       And section 366.24, subdivision (11) provides: “Prior consent to a permanent plan
of [TCA] of an Indian child shall not be required of an Indian parent or Indian custodian
whose parental relationship will be modified by the [TCA].” Thus, there was no need for
father’s approval prior to the juvenile court affording the TCA order full faith and credit.
       In considering the applicability of a TCA order at this juncture in the dependency
proceeding, it should be remembered that where, as here, reunification services have been
terminated because the parents have failed to reunify, the emphasis is no longer on the
parents’ care, custody and control of the child, but on the child’s needs for permanency
and stability. (See In re Stephanie M. (1994) 7 Cal.4th 295, 317; see also H.R., supra,
208 Cal.App.4th at p. 759.) Therefore, in view of the legislative determination that an
Indian child’s best interests normally will be best served by preserving his or her tribal
connections, there being no evidence to the contrary, the juvenile court did not abuse its
discretion in selecting TCA as the permanent plan.


8      We also note, as stated in the All County Letter, in preparing the TCA order, the tribe “is
not required to disclose the tribal customs or ceremonies used during this process.” (CDSS, All
County Letter No. 10-47, supra, § 8.1, p. 24.)


                                               15.
      We reject father’s claim that the juvenile court erred in affording the TCA order
full faith and credit because he was not given an adequate opportunity to be heard on the
visitation terms of the TCA order.
                                     DISPOSITION
      The judgment is affirmed.


                                                        ___________________________
                                                                           KANE, J.
WE CONCUR:


 __________________________
HILL, P.J.


 __________________________
GOMES, J.




                                           16.
Filed 11/4/15               CERTIFIED FOR PUBLICATION


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FIFTH APPELLATE DISTRICT


In re SADIE S. et al., Persons Coming Under the
Juvenile Court Law.

FRESNO COUNTY DEPARTMENT OF                                        F070288
SOCIAL SERVICES,
                                                      (Super. Ct. Nos. 11CEJ300086-2,
        Plaintiff and Respondent,                    11CEJ300086-3 & 11CEJ300086-4)

                 v.
                                                     ORDER GRANTING REQUEST
JIMMIE S.,                                              FOR PUBLICATION
        Defendant and Appellant.




        As the nonpublished opinion filed on October 5, 2015, in the above entitled
matter hereby meets the standards for publication specified in the California Rules of
Court, rule 8.1105(c), it is ordered that the opinion be certified for publication in the
Official Reports.


                                                                      KANE, J

WE CONCUR:


                                                                         GOMES, J.


       HILL, P.J.
