Filed 4/9/13 In re A.J. CA3
                                           NOT TO BE PUBLISHED



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 This opinion has not been certified for publication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.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----



In re A.J. et al., Persons Coming Under the Juvenile
Court Law.

SHASTA COUNTY HEALTH AND HUMAN                                                               C071107
SERVICES AGENCY,
                                                                                        (Super. Ct. Nos.
                   Plaintiff and Respondent,                                          09 JV SQ 2785601,
                                                                                      09 JV SQ 2825001,
         v.                                                                           11 JV SQ 2875001)

ANGELINA J.,

                   Defendant and Appellant.



         This appeal arises from proceedings following a limited reversal of orders
terminating parental rights and remand for compliance with the notice provisions of the
Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.) As a result of new inquiry
and notice by the Shasta County Health and Human Services Agency (Agency), a tribe
was located, the minors were enrolled in the tribe and parental rights were again
terminated. (Welf. & Inst. Code, §§ 224.2, 366.26 [further undesignated statutory



                                                             1
references are to this code].) Mother, Angelina J., appeals, challenging the juvenile
court‟s findings on active efforts, placement preferences and serious emotional and
physical damage to the minors if returned to parental custody. Appellant further argues
the Indian child exception to termination should have applied and that all prior orders
should be invalidated due to failure to comply with the ICWA. Appellant also contends
that none of these claims were forfeited and, if they were, then counsel provided
inadequate representation. We affirm.
                                          FACTS
       Appellant was arrested for domestic violence in December 2008. The Agency
filed a petition to detain one-year-old A.J. in January 2009 due to parental substance
abuse, anger and mental health problems. The juvenile court ordered reunification
services for both parents. Eva J. was born in November 2009 and removed from parental
custody. Reunification services continued to be provided; however, the parents made
little progress, testing positive for drugs and alcohol, failing to attend programs and
continuing to engage in domestic violence. In April 2010, the juvenile court terminated
services as to A.J., denied services for Eva. J., and set a section 366.26 hearing for both
minors. While the hearing was pending and appellant was in custody, appellant gave
birth to E.J. who was detained and placed with his siblings. The juvenile court denied
services for E.J. in February 2011 and set a section 366.26 hearing. The same day,
parental rights were terminated as to A.J. and Eva J. Parental rights were terminated as to
E.J. in June 2011.
       The parents appealed the termination orders in case Nos. C067484 and C068578.
The appeals challenged the inquiry and adequacy of notice under ICWA. Respondent
conceded there were some problems with ICWA compliance and this court reversed both
appeals for the limited purpose of compliance with ICWA notice and, if a tribe was
identified, for a new section 366.26 hearing.



                                                2
       The status review report in February 2012 stated both parents had been released
from prison. One of father‟s conditions of parole was to have no contact with appellant.
However, both gave the same address as their residence and in November 2011 both were
involved in a violent incident serious enough to result in a police report. In January 2012,
an arrest warrant issued for father. Father and appellant were living together in their car
at a truck stop. Appellant planned to enter a drug treatment program. The minors
remained placed together in an adoptive home and were doing well in the placement.
The parents had not visited or had contact with the minors for over a year, with the
exception of father‟s single visit with E.J. Prior to their incarcerations, the parents‟ visits
had been reduced due to erratic attendance and troubling conduct. Neither parent made
any attempt to maintain a relationship with any of the minors.
       As a result of the limited remand in the prior appeals, the Agency conducted
further inquiry about the family‟s Indian heritage and discovered the maternal
grandmother now claimed ancestry in the Potawatomi tribe among others. New notice
was sent to all relevant tribes. The Citizen Potawatomi Nation (CPN) contacted the
Agency in October 2011 and, as a result, the social worker completed applications for the
minors for tribal membership in the CPN, the tribe intervened and tribal membership for
the three minors was finally granted in March 2012.
       Following the first contact with CPN, the social worker maintained a connection
with CPN‟s tribal enrollment specialist, Tasha Alves, and with CPN‟s ICWA tribal
representative and case manager, Laurie Clark, to provide information on the case and to
assure that the Agency did what was necessary to maintain the minors‟ tribal connection.
The prospective adoptive parents introduced the minors to their Indian cultural heritage
by teaching songs in the tribal language, securing a book on important cultural beliefs,
and taking A.J. to a multicultural event to expose her to Native American culture.
       The March 2012 report for the section 366.26 hearing and a permanent plan
review recommended termination of parental rights and a permanent plan of adoption.

                                               3
The report stated the tribe had not yet stated a position on adoption or placement. The
minors remained together in an adoptive home. The caretakers were prepared to provide
experiences which would connect the minors with both their Indian and African
American heritages. The Agency concluded the minors were likely to be adopted in a
reasonable time either by the current caretakers or another family. The report also
contained recommended findings for the permanent plan review hearing.
       At the combined section 366.26 and permanent plan review hearing in April 2012,
the parties stipulated to using a written declaration instead of testimony from the Indian
expert selected by the tribe, Laurie Clark. Clark‟s declaration stated she was employed
by the CPN as a case manager for the tribe‟s FireLodge Children and Family Services
department. Clark had reviewed the placement information provided to her and believed
the Agency tried, without success, to place the minors with family. Given the lapse of
time, she was of the opinion that it was in the minors‟ best interests to remain together
and that the current placement was appropriate in that the foster family appeared to meet
the minors‟ needs and was making an effort to assist the minors in recognizing their
cultural heritage. The CPN had no objection to the minors moving toward permanency in
the current placement.
       The declaration discussed CPN community standards relating to domestic
violence, substance abuse, and mental health treatment. The tribe did not condone
domestic violence and would remove children from exposure to it. Further, before a
child would be returned, the parents had to work toward education, counseling, and
development of ways to deal with potentially violent situations. The CPN also did not
condone exposing children to substance abuse. Parents were expected to have the
capacity to care for their children without impairment. The CPN supported participation
in mental health treatment and expected parents to work diligently in treatment to achieve
recovery and be able to meet the needs of their children. Clark reviewed the documents
regarding the services provided to the parents and opined that the Agency made active

                                             4
efforts to prevent the breakup of the Indian family and that the efforts were unsuccessful.
She stated that the court had found services were “reasonable” but noted that the CPN
looked to Agency actions which included locating service providers and assisting the
family with services and transportation rather than to court findings to assess active
efforts.
       Clark was convinced that, both at the time of removal and currently, continued
custody of the minors by the parents was likely to result in serious emotional or physical
damage to the minors. The parents had significant domestic violence and mental health
problems and had reasonably attainable goals in the case plans. However, appellant had
chosen to discontinue mental health services and psychiatric medications, leave substance
abuse treatment, and continue to test positive for multiple substances. Father
discontinued his psychiatric medications and tested positive for drugs. Neither parent
made visitation a priority and Clark was concerned that continued visitation could prove
more damaging to the minors than no visitation. She recognized that the Agency
provided full services when A.J. was removed and for a period after Eva J.‟s removal but
the family continued to deteriorate during the reunification period due to parental
resistance and failure to comply with the service plans. The minors had made intellectual
and emotional progress in their foster placement and would likely suffer serious
emotional or physical damage if returned to the home because the parents lacked the
determination to commit to a drug and violence free home.
       Clark and counsel for the CPN were present by telephone at the hearing. Clark
testified the CPN supported termination of parental rights.
       Appellant‟s counsel made an offer of proof that appellant had participated in
substance abuse treatment after her release from prison, attended AA and NA, was in
compliance with the terms of her probation, attended a Parent-to-Parent program and was
testing clean. Appellant‟s documents showed she began an outpatient drug treatment
program in January 2012 and was continuing to participate in April 2012, showing her

                                             5
commitment to recovery. She had several negative drug tests and was attending relapse
prevention groups. Counsel argued appellant‟s efforts showed a change in circumstances
although counsel admitted there was little evidence on the best interests of the minors,
and asked the court to consider the parent-child bond in determining whether termination
was in the minors‟ best interests. The Agency objected to any oral motion to modify
pursuant to section 388. When the court inquired, Clark said the CPN had nothing
further.
       The court denied the oral petition for modification finding it was not in the
minors‟ best interests. The court found appellant‟s efforts to stabilize her life came too
late for the minors, who deserved permanency. The court found the minors were
adoptable and terminated parental rights. The minutes of the hearing indicate that at this
point, the court adopted and executed the section 366.26 orders as found in Judicial
Council form JV-320. Included in the form is a finding beyond a reasonable doubt that
continued custody of the child by the parent is likely to result in serious emotional or
physical damage to the child. The court then adopted the Agency‟s recommended
findings and orders for the permanency review hearing which included a finding by clear
and convincing evidence that ICWA did apply and that continued custody with the parent
was likely to cause the Indian children serious emotional or physical damage.1 The court



1       The record, specifically the reporter‟s transcript, is somewhat unclear as to
precisely what occurred when the court issued its findings and orders for the combined
hearing. As a result, we directed the parties to address the effect, if any, of the finding by
clear and convincing evidence that continued custody with the parent was likely to cause
the Indian children.
        Respondent concluded the finding, which appears only in the findings and orders
for the permanent plan review as recommended by the Agency and adopted by the court,
had no effect on the orders terminating parental rights which appear in the JV-320 form,
which included a similar finding made beyond a reasonable doubt as required by ICWA,
because the findings were made separately. Appellant suggests that the lack of clarity
indicated that the juvenile court was uncertain of the standard by which the finding had to

                                              6
further found that the minors‟ placement was required to serve their best interests and the
placement was necessary and appropriate. The court selected a permanent plan of
adoption and set another permanent plan review hearing.
                                      DISCUSSION
                                              I
       Appellant, asserting that the juvenile court may not bypass services when an
Indian child is the subject of a dependency proceeding, argues that substantial evidence
did not support the juvenile court‟s finding that the Agency made active efforts to prevent
the breakup of the Indian family.
       When the sufficiency of the evidence to support a finding or order is challenged on
appeal, the reviewing court must determine if there is any substantial evidence -- that is,
evidence which is reasonable, credible and of solid value -- to support the conclusion of



be made and that substantial evidence did not support a finding beyond a reasonable
doubt.
        After careful review of the minutes, the reporter‟s transcript and the written orders
adopted by the court, we are satisfied that the court‟s somewhat compressed ruling did
not conflate the orders of the two pending matters and agree with respondent that the
troubling language in the permanent plan review order had no effect on the order
terminating parental rights. The above recitation of the facts reflects this conclusion.
        Appellant‟s concern that the court may not have applied the proper standard
because it did not articulate that the finding that continued custody by the parents was
likely to cause the Indian children serious emotional or physical harm was made beyond a
reasonable doubt is not convincing. The court did adopt the JV-320 form and executed it
during the hearing before it addressed the permanent plan review orders. It is settled that
there is no need to articulate a well known standard. (In re Bernadette C. (1982) 127
Cal.App.3d 618, 625.) The lack of clarity in the record raised the concern, not that the
court misunderstood the standard, but that the orders for the two hearings were conflated,
thereby potentially affecting the adequacy of the ICWA findings. Having concluded the
record adequately demonstrated the findings and orders for the two hearings were
separate and the ICWA findings necessary for termination properly were made and
appear in the orders terminating parental rights, we conclude the findings in the
permanent plan review, which were not required by ICWA (25 U.S.C. § 1912(e) & (f)),
had no effect on the termination order.

                                             7
the trier of fact. (In re Angelia P. (1981) 28 Cal.3d 908, 924; In re Jason L. (1990) 222
Cal.App.3d 1206, 1214.) In making this determination we recognize that all conflicts are
to be resolved in favor of the prevailing party and that issues of fact and credibility are
questions for the trier of fact. (In re Jason L., supra, 222 Cal.App.3d at p. 1214; In re
Steve W. (1990) 217 Cal.App.3d 10, 16.) The reviewing court may not reweigh the
evidence when assessing the sufficiency of the evidence. (In re Stephanie M. (1994) 7
Cal.4th 295, 318-319.)
       “Any party seeking to effect . . . termination of parental rights to [] an Indian child
under State law shall satisfy the court that active efforts have been made to provide
remedial services and rehabilitative programs designed to prevent the breakup of the
Indian family and that these efforts have proved unsuccessful.” (25 U.S.C. § 1912(d); §
361.7, subd. (a).) “What constitutes active efforts shall be assessed on a case-by-case
basis. The active efforts shall be made in a manner that takes into account the prevailing
social and cultural values, conditions, and way of life of the Indian child‟s tribe. Active
efforts shall utilize the available resources of the Indian child‟s extended family, tribe,
tribal and other Indian social service agencies, and individual Indian caregiver service
providers.” (§ 361.7, subd. (b); see also Cal. Rules of Court, rule 5.484(c).)
       In this case, appellant and father were provided extensive reunification services
with A.J. to address substance abuse, anger, and mental health problems. Appellant did
not actively engage in services and failed to make any progress in reunification, resulting
in termination of services for A.J. and bypass of services for the two younger minors.
When the case was returned on remand after the first appeal and the minors‟ tribe was
identified, the social worker contacted the tribe, assisted in securing enrollment of the
minors and maintained contact with the tribal representative to provide ongoing
information on the case. The expert‟s declaration explained the community standards for
the tribe regarding violence, substance abuse and mental health treatment and the tribe‟s
expectations that parents would work diligently to overcome these problems and develop

                                              8
the capacity to care for their children. Appellant and father, despite services designed to
address their problems, continued to abuse drugs and alcohol, did not go to or actively
engage in remedial programs, continued to participate in domestic violence and did not
regularly attend visits, thereby failing to maintain a relationship with the minors and
placing their own interests before those of the minors. Ample evidence supports the
juvenile court‟s finding that active efforts, which took into account the prevailing social
and cultural values of the tribe, were offered and that those efforts were unsuccessful.
       A.     Bypass of services for Eva and E.J.
       Appellant argues section 361.7, subdivision (a), which requires a finding of active
efforts, applies “notwithstanding” section 361.5, a statute that permits bypass of services
in enumerated circumstances. Appellant therefore contends that in an ICWA case the
court must under all circumstances make active efforts to provide services. We disagree.
       A similar argument, predating the enactment of section 361.7, was made in Letitia
V. v. Superior Court (2000) 81 Cal.App.4th 1009, where the juvenile court bypassed
services in the current case based on unsuccessful reunification efforts in a previous case
involving the same parent and a sibling. (Id. at p. 1016.) Observing that the law did not
require the performance of idle acts and that federal law did not require duplicative
reunification services, the court concluded that repeating substantial but unsuccessful
efforts to address a parent‟s entrenched drug problem “would be nothing but an idle act.”
(Ibid., italics & fn. omitted.) The court held that active efforts required only that timely
and affirmative steps be taken to avoid the breakup of Indian Families whenever possible.
(Id. at pp. 1015-1016.) In support of what it termed an obvious conclusion, the court
cited similar holdings in a number of other jurisdictions. (Id. at p. 2017.)
       Following enactment of section 361.7, the court in In re K.B. (2009) 173
Cal.App.4th 1275, held that ICWA does not prevent denial of services where bypass
provisions apply. In K.B., the father had committed a violent felony but argued section
361.7, subdivision (a), required provision of services. The K.B. court discussed Letitia V.

                                              9
and contrasted its facts to Letitia V., noting that the father had never been offered services
but found that doing so would nonetheless be an idle act since he was a registered sex
offender for a prior conviction for lewd acts on a child and had reoffended with the half
sibling in the current case. (Id. at pp. 1283-1284, 1287-1288.)
       Whether prior efforts have failed or current circumstances demonstrate the futility
of providing services, the ICWA does not require active efforts in every case. The goal
of ICWA is to avoid the breakup of an Indian family “whenever possible,” not to force
Indian children to remain in the limbo of temporary placement while ineffective efforts
are made to attempt to encourage unwilling parents to change their entrenched habits.
(Letitia V. v. Superior Court, supra, 81 Cal.App.4th at p. 1016.)
       Appellant attempts to distinguish Letitia V. because in that case the tribe was
actively involved in referrals when the active efforts were made and the tribe was asked
to brief the bypass issue. Further, the mother in Letitia V. was not making progress and
appellant had shown recent progress.
       Here, the tribe was involved as soon as it was identified. The tribe was fully
informed of the facts of the case, including previous services offered and the parents‟
progress or lack thereof. The tribe did not suggest that any other services would have
been beneficial and, at the section 366.26 hearing, did not suggest that appellant‟s recent
efforts indicated active efforts had not been made. Appellant‟s efforts subsequent to the
bypass to improve her life and address the problems which led to the removal of the
minors are circumstances to be addressed in a petition for modification, not in
considering whether a prior order bypassing services was in violation of ICWA.
       B.     Effect of late discovery of Indian heritage
       Appellant argues that services prior to the first order terminating parental rights
did not constitute active efforts, there were no efforts of any kind after remand and the




                                             10
court did not consider cultural values, instead relying on the prior reasonable services
findings to support active efforts finding.2 The record belies these claims.
       Prior to finding the minors were Indian children, no active efforts were required.
Nonetheless, the record is clear that the social worker did not merely hand the parents a
case plan and expect them to complete it. Multiple referrals were made to substance
abuse, domestic violence and mental health programs and transportation was provided
when needed. Certainly the services offered to the parents were tailored to meet their
needs and address the issues which led to the minors‟ removals.
       There is no authority which requires active efforts after remand, but such efforts
are apparent here. (In re K. B., supra, 173 Cal.App.4th. at p. 1288.) Once the CPN was
identified as the minor‟s tribe, the tribal enrollment specialist and the social worker
coordinated efforts to enroll the minors in the CPN tribe. This alone constituted active
efforts after the remand. (Cal. Rules of Court, rule 5.482(c).) However there was more.
The social worker also engaged the participation of the tribal representative and case
manager, Laurie Clark, who was fully informed of the history and progress of the case
and was consulted on placement and permanency issues. The tribal representative, in her
function as an Indian expert, also provided the court with the cultural context in which to
assess the services that had been offered to the parents. As an expert, she could not
testify that active efforts were made since that is a question of law and ICWA does not
require such testimony to support a finding of active efforts, but she could, and did,




2      Appellant claims that failure to discover the proper Indian heritage was not her
fault. We note that at the time of the first appeal she had made several shifting claims of
Indian heritage, ultimately denying any, and based her first appeal on father‟s claims.
During the pendency of the first appeal, the maternal grandmother discovered from her
relatives that she, appellant, and the minors, were eligible for membership in a
Potawatomi tribe.

                                             11
provide a context in which the court could assess the efforts made. (In re K.B., supra,
173 Cal.App.4th at p. 1287, fn. 12.)
       Finally, appellant argues that she was now, by virtue of services she participated in
after her release from state prison in October 2011, amenable to active efforts. We
disagree.
       Following her release, appellant continued her relationship with the father and was
involved in a violent incident. Thereafter, she entered an outpatient treatment program
and was, by report, doing well during the next four months. Appellant‟s participation
was encouraging, but given her extensive history of substance abuse, domestic violence,
and mental health problems, a few months‟ progress in one area could hardly justify
further efforts to reunify the family. Active efforts had been provided to her. The minors
were not required to wait for permanency until appellant might participate in and
successfully complete services by achieving positive, sustained, long-term results.
                                              II
       Appellant contends the minors were not placed in accordance with the placement
preferences of the ICWA and there was no finding of good cause to vary from the
preferences.
       ICWA provides criteria and a placement preference order for foster care and
preadoptive placement of Indian children. “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 non-Indian licensing authority; or [¶] (iv) an institution for

                                              12
children approved by an Indian tribe or operated by an Indian organization which has a
program suitable to meet the Indian child‟s needs.” (25 U.S.C. § 1915(b); § 361.31,
subds. (b), (c), (h).) The preference order for adoptive placements is restricted to
“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.” (25 U.S.C. § 1915(a); §
361.31, subd. (c).) The tribe may establish a different order of preference by resolution.
(25 U.S.C. § 1915(c).)
       The prevailing social and cultural standards of the tribe shall be applied in meeting
the placement preference. (§ 361.31, subd. (f). ) The prevailing standards may be
confirmed by the tribe or a qualified expert witness who is familiar with the tribe‟s
standards. (Ibid.) The Agency shall use the services of the tribe whenever available in
seeking a placement within the preferences. (§ 361.31, subd. (g).) When no preferred
placement is available, the Agency may place the child with a family committed to
maintaining the child‟s connection to extended family and tribal customs (§ 361.5.31,
subd. (i).)
       Here, the tribe did not change the preference order by resolution and the court was
required to follow the ICWA placement preference order absent a finding of good cause
to the contrary. The record does not include an explicit finding of good cause; rather the
court adopted the recommended finding that “[t]he [Agency] has adhered to the
placement preferences when placing the children and has consulted with the children‟s
tribe concerning appropriate placement of the children in that . . . [the] children are not
placed in a home listed in the placement preferences set forth in the Indian Child Welfare
Act 25 U.S.C. 1903 and Welfare and Institutions Code [section] 361.31 based on the
grounds that: There are no available homes for the children that would be within the
placement preferences and the [Agency] has consulted the tribal representative who have
[sic] not yet concurred with the current placement.” The court also found the placement
“necessary and appropriate.”

                                             13
          The recommended finding was part of the social worker‟s report which predated
the expert declaration by tribal representative and case manager Laurie Clark.3 However,
Clark‟s declaration made it amply clear that she was familiar with the tribal standards,
that there was no available placement within the preference list, that the current
placement was appropriate and met the minor‟s needs and, thus, the current foster
placement was one within the requirements of section 361.31, subdivision (i). Under
California law, this placement is an acceptable alternative to a preferred placement and
thus necessarily meets the requirement of a finding of good cause to avoid the preference.
No explicit finding of good cause was required.
                                               III
          Appellant contends substantial evidence did not support the juvenile court‟s
finding that continued custody with appellant was likely to cause the minors serious
emotional or physical damage as required by ICWA prior to an order terminating parental
rights.
          “No termination of parental rights may be ordered . . . in the absence of a
determination, supported by evidence beyond a reasonable doubt, including testimony of
qualified expert witnesses, 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.” (25
U.S.C. § 1912(f).)
          When the sufficiency of the evidence to support a finding or order is challenged on
appeal, the reviewing court must determine if there is any substantial evidence -- that is,
evidence which is reasonable, credible and of solid value -- to support the conclusion of
the trier of fact. (In re Angelia P., supra, 28 Cal.3d at p. 924; In re Jason L., supra, 222



3      Appellant argues that Clark was only an expert and not a tribal representative.
However, the record indicates that she acted as the tribal representative several months
before the CPN also designated her as its Indian expert.

                                               14
Cal.App.3d at p. 1214.) All conflicts are resolved in favor of the prevailing party and
issues of fact and credibility are questions for the trier of fact. (In re Jason L., supra, 222
Cal.App.3d at p. 1214; In re Steve W., supra, 217 Cal.App.3d at p. 16.)
        Appellant argues the expert‟s declaration did not constitute substantial evidence
because the Indian expert limited her opinion by stating the minors would suffer serious
emotional and physical damage if returned to the parents “without supervision.”
Appellant insists that this limited the opinion to a situation in which all the children are
returned to both parents with no supervision when the parents were not determined to
commit to a sober nonviolent life and, as such, the opinion was meaningless.
        We do not read the expert‟s declaration as imposing limitations on her opinion but
rather as an explanation and analysis of perceived facts which support her opinion. The
expert‟s evidence, both written and oral, coupled with the evidence in the social worker‟s
reports of the parents‟ ongoing dysfunctionality constitutes substantial evidence to
support the juvenile court‟s finding beyond a reasonable doubt that continued custody of
the children by the parents was likely to result in serious emotional or physical damage to
them.
        Appellant asserts that the expert‟s opinion did not take into account appellant‟s
recent progress in services and her amenability to reunification. This is incorrect. The
expert, Clark, was present by telephone and heard appellant‟s trial counsel‟s offer of
proof regarding appellant‟s progress. When asked by the court if there was anything
further from the tribe, Clark responded there was not. Had the evidence of appellant‟s
progress impacted her conclusions as an expert on behalf of the tribe, she would have
said so.
                                              IV
        Citing section 366.26, subdivision (c)(1)(B)(vi), appellant argues the court erred in
concluding appellant had not shown there was a compelling reason for determining that
termination of parental rights would not be in the best interests of the child because

                                              15
appellant had demonstrated her current amenability to services and recent progress in the
substance abuse treatment program she had entered.
         At the selection and implementation hearing held pursuant to section 366.26, a
juvenile court must choose one of the several “ „possible alternative permanent plans for
a minor child. . . . The permanent plan preferred by the Legislature is adoption.
[Citation.]‟ [Citations.] If the court finds the child is adoptable, it must terminate
parental rights absent circumstances under which it would be detrimental to the child.
[Citation.]” (In re Ronell A. (1996) 44 Cal.App.4th 1352, 1368, original italics.)
         There are only limited circumstances which permit the court to find a “compelling
reason for determining that termination [of parental rights] would be detrimental to the
child.” (§ 366.26, subd. (c)(1)(B).) The party claiming the exception has the burden of
establishing the existence of any circumstances which constitute an exception to
termination of parental rights. (In re Cristella C. (1992) 6 Cal.App.4th 1363, 1372-1373;
In re Melvin A. (2000) 82 Cal.App.4th 1243, 1252; Cal. Rules of Court, rule 5.725(d)(4);
Evid. Code, § 500.)
         One of the exceptions is “[t]he child is an Indian child and there is a compelling
reason for determining that termination of parental rights would not be in the best interest
of the child, including, but not limited to: [¶] (I) Termination of parental rights would
substantially interfere with the child‟s connection to his or her tribal community or the
child‟s tribal membership rights. [¶] (II) The child‟s tribe has identified guardianship,
long-term foster care with a fit and willing relative, tribal customary adoption or another
planned permanent living arrangement for the child.” (§ 366.26, subd. (c)(1)(B)(vi)(I)-
(II).)
         Appellant attempts to create a general “best interest” exception based on her
progress in services and her claim of lack of active, Agency efforts prior to remand.
         Even assuming that the statute applies to circumstances other than those which
affect the child‟s connection to the tribe, appellant cannot demonstrate there is a

                                              16
compelling reason for determining that termination is not in the best interests of the
minors. As previously discussed, active efforts were provided to appellant both before
and after the remand. Further, appellant‟s tardy progress in services has not
demonstrated a significant period of stability and sobriety such that delay of permanency
for the minors would be justified. Finally, appellant has had little contact with the minors
during and after her incarceration and has virtually no relationship with them. Even trial
counsel acknowledged that there was little evidence of the children‟s best interests to
support a petition for modification. The juvenile court did not err in failing to find that
the Indian child exception applied to defeat termination of parental rights.
                                              V
       Asserting this court is a court of competent jurisdiction within the meaning of
Title 25 United State Code section 1914, appellant argues this court should invalidate
prior orders terminating and bypassing services because the orders were in violation of
Title 25 United States Code section 1912 in that active efforts designed to prevent the
breakup of the Indian family were not provided.
       The ICWA statute provides: “Any Indian child who is the subject of any action
for foster care placement or termination of parental rights under State law, any parent or
Indian custodian from whose custody such child was removed, and the Indian child‟s
tribe may petition any court of competent jurisdiction to invalidate such action upon a
showing that such action violated any provision of sections 101, 102, and 103 of this Act
[25 USCS §§ 1911, 1912, and 1913].” (25 U.S.C. § 1914.)
       We need not determine whether this court is a “court of competent jurisdiction”
for invalidation purposes since we have previously determined that active efforts were
provided both before and after remand in this case. Thus, there is no basis for
invalidation.




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                                             VI
       Appellant claims the forfeiture doctrine does not apply to bar consideration of any
of her arguments and, if it does, then trial counsel was ineffective in failing to preserve
the point for appeal. Since we have not applied the forfeiture doctrine, no further
discussion of this claim is required.
                                        DISPOSITION
       The orders of the juvenile court are affirmed.



                                                    NICHOLSON           , J.



We concur:



      RAYE          , P. J.



      HULL          , J.




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