Los Angeles County Department of Children & Family Services v. Arturo G. (92 Cal. App. 4th 1274, 2001)

Opinion

BOREN, P. J.

Introduction

The trial court, feeling compelled by the Indian Child Welfare Act, ordered the minor in this dependency case removed from the home of the only parents the minor knows, and transferred to a home on a Chippewa Indian reservation in Minnesota. We apply the “existing Indian family doctrine” to reverse the trial court’s placement order.

Summary

In a hearing under Welfare and Institutions Code section 366.26, the trial court terminated parental rights and, under authority of the Indian Child Welfare Act (the ICWA or the Act) (25 U.S.C. § 1901 et seq.), ordered Santos Y. (hereinafter the Minor) removed from his foster adoptive home of his de facto parents, Arturo G. and Lucila G. (also known as Lucila C.) (hereinafter Appellants), and placed in a preadoptive home on the Grand Portage Band Reservation of the Minnesota Chippewa Tribe in Minnesota.

The Minor is a two-and-one-half-year-old, multiethnic boy bom prematurely November 25, 1998, in Los Angeles. He has lived in foster care since birth, and with Appellants since he was three months old. Appellants presently remain his caretakers, and were granted de facto parent status. The Minor regards Appellants as his parents, and the permanent plan for the Minor, issued prior to the order considered here, was that Appellants would adopt him should his parents fail to reunify.

The Minor was detained by respondent Los Angeles County, through its Department of Children and Family Services (hereinafter the Department), immediately after his birth, due to a toxicology screen positive for cocaine. A dependency petition was sustained on January 13, 1999, based on the toxicology screen, as well as a finding that the natural parents’ home was uninhabitable, littered with trash and debris, vermin-infested, and foul smelling.

The Minor’s mother is Kathleen B. (the Mother). The Minor’s declared father is Noah B. (the Father, also known as Noah Y.) The Mother has been separated for four years from her husband, who lives in Los Angeles. She has had an intimate relationship with Noah B. for the past three years.

Each biological parent of the Minor has some Native-American heritage, and both now reside in Oregon, where they had lived prior to coming to California, six weeks before the Minor’s birth. The parents have not appealed and are not parties to this action. The Father is of Navajo descent through a grandmother, but he is not registered with the Navajo Tribe, nor does he participate in any tribal customs. The Mother is an enrolled member of the Minnesota Chippewa Tribe (the Tribe) Grand Portage Band (the Band).

The Tribe is a federally recognized Indian tribe for purposes of the ICWA, with headquarters at Cass Lake in North Central Minnesota. The Tribe has component reservations, and it consists of Chippewa Indians of the White Earth, Leech Lake, Fond du Lac, Bois Forte, and Grand Portage Reservations, and the Nonremoval Mille Lac Band of Chippewa Indians. (The Revised Constitution and ByLaws of the Minnesota Chippewa Tribe, Minnesota, Preamble) (Minnesota Chippewa Constitution). The governing bodies of the Tribe are the Tribal Executive Committee and the six Reservation Business Committees. (Minn. Chippewa Const., art. III.) The Grand Portage Band Reservation (the Reservation) is located at the extreme northeastern comer of Minnesota, near that state’s juncture with Michigan and the Canadian province of Ontario, and is home to 400 to 500 people.

The court based its determination that the ICWA applied to the Minor on a June 3, 1999, letter from the Tribe to the Mother, stating that the Mother was of one-half Chippewa descent; she was enrolled in the Band; her father and grandparents had been enrolled members of the Tribe; the “Minor was eligible” under the ICWA; the Tribe would forward her letter to the Band; and the Mother should inform the Department that all notices regarding the Minor should be sent to the Tribe, to the attention of the Tribe’s director of human services in Cass Lake, Minnesota.

The Tribe had been served notice of the case on December 17, 1998, within three weeks of the Department’s having filed its initial dependency petition, and the Tribe was served regularly thereafter; it made no appearance up to and including the time that reunification services to the parents were terminated on September 21, 1999. At the September 21, 1999 hearing at which the court ordered services to the parents terminated, the court ordered the Department to contact the Tribe and to engage it in attempting to find an adoptive placement for the Minor. In December 1999, after the Tribe had located the Mother’s first cousin, who had decided that it would be in the Minor’s best interest that he be adopted by Appellants, the Tribe notified the Department that it did not intend to intervene, and that the Minor should remain where he was placed.

On March 3, 2000, contrary to the Tribe’s representations, the Band petitioned in intervention, and on May 30, 2000, it asserted that the ICWA required that the Minor be placed for adoption with a Band member on the Reservation. ICWA placement preferences (25 U.S.C. § 1915(a); Cal. Rules of Court, rule 1439(k)) give priority to tribal and Native-American preadoptive and adoptive families, absent good cause not to do so.

Based on its finding that the ICWA applied to the Minor, the trial court assumed that the ICWA dictated the Minor’s placement. On May 31, 2000, the Chairman of the Grand Portage Reservation Tribal Council wrote to the court, advising that the Band had located a member interested in adopting the Minor. The court held a hearing on September 29, 2000, and October 2-3, 2000, more than 18 months after the Minor had been placed with Appellants, during which it received expert and lay testimony concerning the existence of good cause to deviate from ICWA placement preferences with respect to the Minor’s adoptive placement. Appellants and the Minor separately opposed the Band’s proposal that the Minor be removed from Appellants and placed on the Reservation. Based on a finding that the Minor did not possess extraordinary physical or emotional needs, the court declined to find good cause to depart from ICWA placement preferences, ordered the Minor removed from his home with Appellants, and ordered him placed with a prospective adoptive mother on the Reservation. Appellants appealed. We issued and dissolved a stay, granted a petition for supersedeas, and appointed counsel for the Minor. Counsel for the Minor filed a respondent’s brief in favor of reversing the order of the juvenile court.

We issued a published opinion on July 20, 2001, reversing the trial court’s opinion on two grounds: (1) unconstitutionality of the ICWA as applied, under the existing Indian family doctrine; and (2) waiver of assertion of ICWA placement preferences. On August 6, 2001, the Band filed a petition for rehearing that did not address our disposition, a reversal of the trial court ruling ordering the Minor placed on the Reservation, but requested instead, further reconsideration of the Band’s relationship to the Tribe; the Band requested either rehearing on the issue of the Band’s independent entitlement to notice of the dependency proceedings or, in the alternative, deletion of all references in the opinion concerning the Band’s separate status as an Indian tribe, waiver, and entitlement to notice under ICWA. Although no competent evidence in the trial court proved that the Band was entitled to notice separate from that provided the Tribe, documents filed in support of the Band’s petition for rehearing created sufficient ambiguity that we deemed it in the interest of justice to grant rehearing and reconsider the case, notwithstanding our view that application of the doctrine of ostensible agency would compel the conclusion that assertion of ICWA placement preferences had been waived.

After reconsideration, we again reverse the trial court’s placement order, finding application of the ICWA to the Minor to be unconstitutional under the Fifth, Tenth, and Fourteenth Amendments to the United States Constitution.

Factual and Procedural Background

1. Detention Hearing (December 2, 1998)

The Minor was bom prematurely on November 25, 1998, and removed from his parents’ care due to a positive toxicology screen for cocaine. The Department filed a petition December 1, 1998, alleging that the Minor came within section 300, subdivisions (b) and (c) because he had been bom suffering from symptoms of cocaine withdrawal due to his Mother’s use, and his Father knew or should have known of the drug use, and had failed to protect him. The Mother admitted the drag use but maintained it was a recent and isolated occurrence. The Minor was ordered into foster care, and the parents were granted visitation three times a week.

The juvenile court immediately queried the parents concerning tribal associations. The Mother informed the court that she was enrolled in the Tribe. The Father stated that he was of Navajo descent through a grandmother. On December 17, 1998, the Department served, by certified mail, a “Notice of Involuntary Child Custody Proceedings Involving Indian Child” to the Navajo Tribe of Arizona/New Mexico at Window Rock, Arizona, and to the “Minnesota Chippewa Tribe” at Cass Lake, Minnesota. For the Febmary 5, 1999 hearing, the Department sent a similarly addressed notice by certified mail to the tribes.

2. Jurisdictional Hearing (January 13, 1999)

An amended dependency petition was filed January 13, 1999, adding uninhabitable home allegations to the allegations in the initial petition. The home was described as unsanitary, littered with trash and debris, foul smelling, and overran with mice and rats. The allegations of the petition, as amended, were sustained, and the court entered jurisdictional orders. A dispositional hearing was set for February 5, 1999.

According to the Department’s report to the court, the Father had related that he was not registered with the Navajo tribe and did not participate in any tribal customs. The Mother informed the Department that she was a member of the Tribe, but that she had lost any documents connecting her with the Tribe when her mother had died (17 years before).

3. Dispositional Hearing (February 5, 1999)

At the February 5, 1999 dispositional hearing, the juvenile court maintained foster care placement, reunification services, and allowed the parents twice-weekly monitored visits. The court set a nonappearance progress report hearing for May 17, 1999, and calendared a “Permanent Plan Hearing” for August 6, 1999.

The Department reported that the Tribe had notified it by letter on February 2, 1999 that it had no record that either the Mother or the Minor was enrolled. On April 5, 1999, because “Neither the Chippewa Tribe nor the Navajo Nation could find any record of Santos’ parents being registered as . . . tribe members,” the Department’s ICWA Program “closed [its] file on this case. . . .” Nonetheless, notice was thereafter given to both the Chippewa and Navajo Tribes concerning scheduled hearings.

The Department reported that the Minor had been placed with Appellants on March 27, 1999, and that the concurrent plan for the Minor, as of April 15, 1999, was that Appellants would adopt him if his parents were unable to reunify. On April 15, 1999, the Department first discussed adoption with appellant Lucila C., and she had confirmed that she and her husband, Arturo, wanted to adopt the Minor.

4. Six-month Review Hearing (May 17, 1999)

In its report for the May 17, 1999 review hearing, the Department related the parents’ total noncompliance with the case plan, and their lack of progress in addressing the problems which had led to the Minor’s dependency. The parents’ contact with the Minor was reported to be infrequent, only three visits since he had been placed with Appellants.

The Department informed the court that it was improbable that the Minor could be returned to his parents’ home by the August 6, 1999 permanent plan hearing date, and that it was likely that the Minor could be placed in permanent planning for adoption by Appellants by the August 1999 date. The Department related: “The minor appears to have a special bond with his foster family. The minor is a happy and healthy child. The minor is always smiling and appears to enjoy the foster mother’s love and attention. The foster parents have fallen in love with the minor and want to adopt the minor if family reunification with the parents is not successful.”

The Department’s report informed the court that on February 2, 1999, the Tribe had sent a letter to the Department stating that the Minor was not enrolled in the Tribe, but that “[t]he issues of the Indian Child Welfare Act status in this case remain unknown as the Minnesota Chippewa Tribe has yet to respond to request for further information and up date as to eligibility of the minor and or family to fall under that definition.”

At the May 17, 1999 six-month review hearing, the previous orders for suitable placement and reunification services were continued. The Department informed the court that although the Navajo tribe had sent a letter confirming “no heritage,” the Minnesota Chippewa Tribe had not responded to the Department’s request for clarification regarding the Minor’s eligibility for membership. The court stated that the Tribe needed to either say yes or no, and ordered that the parents and the Tribe be given notice for the August 6, 1999 continued six-month review hearing. On July 15, 1999, notice of the August 6, 1999 hearing was sent to the Tribe. It was sent again on July 26, 1999.

5. Six-month Review Hearing (August 6, 1999)

On August 3, 1999, the Department’s children’s social worker (CSW) received a copy of a letter from the Tribe, asserting that the ICWA applied to the Minor. The letter, dated June 3, 1999, was addressed to the Mother, and was mailed by her to the Department on July 27, 1999, seven weeks after it was written. The letter stated that the Mother’s father and grandparents were enrolled in the Tribe, that the Mother was half-degree Chippewa, that the Minor was “eligible for ICWA,” and that the Tribe would forward her letter to the Band, where she was enrolled. The Tribe’s letter to the Mother, written on the letterhead of the Minnesota Chippewa Tribe at Cass lake, Minnesota, advised her to inform the Department that it was required to send all notices regarding the Minor to “our tribe.” The letter, signed by Adrienne Adkins, Director, the Minnesota Chippewa Tribe, Human Services Division, advised, “I will wait to hear from you and L.A. County.” The signator was the same person to whom the Department had sent its initial notice, and the address of the Tribe was that employed by the Department in its notices to the Tribe. On August 4, 1999, the Department faxed to the Tribe a third notice of the August 6, 1999 hearing, accompanied by the court’s most recent minute order.

On August 6, 1999, at the hearing at which the Department had indicated that the Minor could be placed in permanent planning for adoption by Appellants, the Mother’s attorney told the court that he had a letter from the Tribe stating that the Minor was eligible for enrollment. The court then continued the six-month review hearing from August 6, 1999, to September 21, 1999, for a supplemental report and for a hearing contested by the Mother. Based upon the letter from the Tribe, the court found that the ICWA applied to the Minor, and ordered the Department to find a Native American home for the Minor, if possible. The Tribe did not appear.

6. Six-month Review Hearing (September 21, 1999)

The Department’s report for the September 21, 1999 hearing informed the court that the parents remained noncompliant with court-ordered treatment, that they had not visited the Minor in the past five months, and that the Department recommended that the matter be set for a hearing under section 366.26 to terminate parental rights and to select and implement a permanent plan of adoption for the Minor. The Department’s CSW reported that she had been informed by the Indian Child Welfare Services agency that no “Indian homes” were available as of August 10, 1999, and that the agency promised to notify the Department if a vacancy arose.

The Department’s report stated that on August 17, 1999, the CSW spoke with appellant Lucila G., informing her that the Minor was “being registered in the Chippewa Tribe” and “that the court had ordered for the Minor to be placed in a Native American home.” The CSW reported that the “foster mother wept and held Minor Santos very tight[ly] and repeatedly told the Minor how much she loved him. . . . CSW informed foster mother that there was [szc] no Native American[] homes available at the moment so for the present time Minor Santos would remain under her care. . . . Foster mother states that if the parents fail to reunify with [the Minor, Appellants] are interested in adopting the Minor and teaching the Minor about his Indian heritage as he grows.”

The Department’s report included a letter dated August 17, 1999, from Lisa A. Carruthers, M.S., of “Rosemary Children’s Services.” The letter stated that Appellants wished to adopt the Minor, that the Minor at nine months of age was “very attached” to Appellants, that Appellants had provided the Minor “a very loving and nurturing home” and would continue to provide “a warm and loving upbringing.” The letter said that Appellants “are aware of [the Minor’s] Native American descent, and are amenable to teaching Santos about his heritage as he grows older.” The letter also related that the Minor “may have a very difficult adjustment if he is moved to another home and such a move could prove to be adverse to his emotional well-being.”

The Tribe had been sent notice of the September 21, 1999 hearing, which had stated that termination of reunification services would be sought. There was still no response or appearance by the Tribe.

The juvenile court found that return of the nine-month-old Minor to the custody of his parents would create a substantial risk of detriment to him and that reasonable reunification efforts had been provided to the parents, but that those efforts had been unsuccessful. The court found that no substantial probability existed that the Minor would be returned to the parents within six months, terminated reunification services, and scheduled a section 366.26 permanent plan hearing for January 18, 2000. The court directed the CSW to notify the Tribe that the Minor was not in an appropriate ICWA foster home, stating that the Tribe needed “to get involved right now ... so that the native tribe of the child can find an adoptive home.”

7. The Hearings for Permanency Planning

a. January 18, 2000 Hearing

For the January 18, 2000, section 366.26 permanent plan hearing, the Department recommended termination of parental rights and a permanent plan of adoption by Appellants. The Department advised that removal of the Minor from Appellants would be seriously detrimental to the Minor’s emotional well-being because of his substantial psychological ties to Appellants, and recommended that the court find that the Minor’s present placement was necessary and appropriate.

The Department’s report for the hearing stated that the Minor had adjusted well in Appellants’ home, and described the Minor “as a normal, happy, well functioning child at his current foster home. Minor appears to be very bonded with his foster parents. CSW has observed the foster parents and the Minor to be emotionally bonded with each other. This is evident by the way the Minor hugs the foster parents freely. The foster parents Arturo and Lucila have provided Minor Santos with a nurturing environment that has enabled Minor to develop appropriately for his age.” The Department’s report also explained that Appellants were anxious to adopt the Minor.

The Department described Appellants as a married couple who had been together for 24 years. The report related that Arturo G. was 50 years old and employed; Lucila G. was 43 years old, and a homemaker. According to the Department, Appellants successfully raised three children of their own to adulthood, and have grandchildren. The Department’s report for the permanency plan hearing stated that Appellants “appear to be very capable parents” and that they “have provided their natural children with a loving and nurturing home environment.”

The Department’s report recommended that the natural parents not have future visits with the Minor because they had not visited regularly, and had not built a relationship with him. The report related that Minor had become upset and cried when the parents had visited for the first time in five months.

The Department’s report advised the court that following the court’s instruction to it to contact the Tribe to involve it in finding an adoptive home for the Minor, a series of telephone contacts between the Department’s CSW and the tribal social worker (TSW) for the Band had taken place. The Department reported that in a November 9, 1999 telephone conversation, the TSW related that she had discussed the Minor’s case with her supervisor who, she reported, would be setting up a meeting with Grand Portage Reservation Tribal Council members to determine what, if any, action to take with respect to the Minor. On November 11, 1999, the Grand Portage TSW informed the Department’s CSW that she did not have a response from the tribal council concerning the Minor, but would notify the CSW as soon as she knew of one. A week later, on November 18, 1999, the Grand Portage TSW informed the Department’s CSW that she had spoken with a Tribe TSW at Cass Lake, and that the Tribe had located a first cousin of the Mother, JoAnn B., who might be interested in the Minor. A month later, on December 12, 1999, the Department’s CSW received a fax from the Grand Portage TSW, which stated that JoAnn B. had decided that the Department’s plan to have Appellants adopt the Minor was in his best interests, and that JoAnn B. was adverse to uprooting the Minor from a home he had known since he was three months old, with parents who wished to adopt him. The Department’s report stated that the Grand Portage TSW had said that she was certain that there were no other relatives to contact regarding the Minor, and the report referred to an attached letter from the TSW, which the court was unable to locate.

The Tribe did not appear at the hearing. The court found that the Tribe had received notice of the hearing, and related that: “The Tribe’s information is they do not intend to intervene or transfer. They intend the child to remain exactly where he is.” The Mother requested that the matter be set for further hearing, and indicated that she would raise not only issues related to her relationship with the Minor, but also related to the Tribe, such as late notice to it.

The court queried the Department’s CSW regarding whether she had any information concerning the Tribe, and the CSW responded: “I spoke with the Tribe this morning, with the supervisor, JoAnne Lhotha, L-H-O-T-H-A. She instructed me that it’s the Tribe’s position that they’re in agreement with the child to remain where placed, that the resource they thought they had, the first cousin is not a good resource, that they don’t have any financial funds for this child or anything like that. So they’re in agreement the child should remain where placed.”

Because proper notice had not been given to the Father, a continuance of the hearing was necessary. The court ordered the Department to “obtain [an] expert letter from the Tribe” and to serve the Father, the Mother, and the Tribe with notice for the next hearing. The court continued the hearing to March 3, 2000. Notice for the March 3, 2000 hearing was sent to the Tribe.

b. March 3, 2000

On March 3, 2000, the day of the continued permanent plan hearing, the Band filed a petition to intervene and a motion to continue the hearing for 60 days to allow its counsel to review and investigate the case. The Band’s moving papers asserted that it had only “recently approved the associating of local counsel to petition to intervene in this matter,” and also claimed that it had “received delayed notice of this matter [from the Tribe] and only recently received complete information regarding the Indian mother’s circumstances.” The Band alleged that the first notice it had of the Minor’s case was the notice the Department had served on the Tribe on July 26, 1999, and that service on Tribe had delayed its actual notice. Notice was further delayed, the Band alleged, because the Tribe had to trace enrollment records to determine which of its bands was associated with the Mother’s relatives, and because the Band originally had received incomplete information regarding the Mother’s circumstances and efforts at rehabilitation.

The court granted the motion to intervene, notwithstanding the fact that it was “very late,” continued the matter to April 27, 2000, and ordered the Department to provide the Band with copies of the case reports.

c. April 27, 2000

On April 27, 2000, the day of the continued section 366.26 permanent plan hearing, the Mother filed a petition pursuant to section 388 to modify the court’s previous orders, asking the court to return the Minor to her custody or reinstitute reunification services for six months. The Mother failed to appear at the hearing, having called her attorney earlier in the day to report a medical emergency. By this date, the Mother was living in Oregon, and the Minor was one year old.

The Band’s attorney told the court that the Band’s position was the Mother should “get a second chance based on the changed circumstances.” In response to queries by the court, the Department related “that the Tribe has not been able to locate a home for the child.” The court appointed Dixie Noble, Ph.D., to examine and evaluate the Minor and Appellants concerning future placement and to talk to the attorneys for the Band. Noble, a Native American, was appointed as an “Indian expert for an Indian child.” Noble was to address “[wjhether or not we can remove this child, after this amount of time, from his current home to a tribal member who’s available for adoption; what kind of trauma; and if so, then what? Is she looking at a possible transition? Is she looking at the Tribe changing its position and approving the current foster home after they get to know them?”

The court continued the matter to June 1, 2000, for a contested hearing.

d. June 1, 2000

In its report for the continued contested section 366.26 permanent plan hearing, the Department recommended that the court order the Minor to remain a dependent of the court, and that he be referred for adoption services. It also recommended that the court find that Appellants were willing and capable of providing a stable and permanent environment for the Minor, and that “removal [of the minor from Appellants] would be seriously detrimental to the emotional well-being of [the Minor] because [he] has substantial psychological ties to [Appellants].” The Department advised that further visitation between the Mother and the Minor would not be detrimental to the Minor.

The Chairman of the Grand Portage Reservation Tribal Council sent a letter to the court, dated May 31, 2000, stating: “The Band will support continued efforts to reunify the mother with the child if the mother can present adequate evidence at the June 1, 2000, . . . section 388 hearing of a positive change of circumstance. . . . HD However, if the mother fails to present adequate evidence of changed circumstances, then the Band would support termination [szc] of reunification services and adoptive placement in a Band member home or Indian home. Further, the Band has now located a Band member interested in adopting this child. The Band member home is approved by the Band as an Indian foster home and [is] currently licensed by the Band for short-term and long-term foster care. The Band believes that if reunification services fail, that adoption by this Band member is in the child’s best interest.”

The Mother’s section 388 petition was to be heard immediately prior to the section 366.26 hearing. The Mother, however, withdrew her section 388 petition, which the court dismissed without prejudice, and the court continued the permanent plan hearing another 60 days, to July 26, 2000. Without elaboration, the Department informed the court that it and the Band had each located “an adoptive Indian home.”

e. July 26, 2000

On July 26, 2000, the section 366.26 permanent plan hearing, which had been continued from January 18, 2000, to March 3, 2000, to April 27, 2000, to June 1, 2000, was again on calendar.

The court had before it a letter from the Band, reporting that it had a new possible placement for the Minor. Also on calendar was Appellants’ motion for de facto parent status.

In their motion for de facto parent status, Appellants described how, when initially placed with them, the Minor had been fragile and sickly, often requiring medical attention. They related that he had had long periods of crying and difficulty breathing, and had suffered from diarrhea, sleep disturbances, and persistent coughing. They described how they had taught the Minor to walk and talk and how he had become part of their family. They declared: “We consider this child to be our child and he considers us his parents. We love Santos. Our commitment to this child is total. We want to adopt Santos and finish raising him, providing him a warm, stable and permanent home.”

The trial court granted Appellants’ motion for de facto parent status.

The record indicated that Dixie Noble, Ph.D., had not yet commenced the interviews that she had been appointed on April 27, 2000, to conduct. In regard to the evaluation, counsel for Appellants informed the court: “[I]t is my clients’ deepest wish to maintain contact with the Tribe, and they are willing to travel to Minnesota to take the child there, and they wish to participate fully. . . . They recognize the value of the culture and seek only to reinforce it.”

The court continued the section 366.26 permanent plan hearing to August 31, 2000, in order to allow Noble an additional four weeks in which to conduct interviews and write her report.

f. August 31, 2000

On August 28, 2000, the Chairman of the Grand Portage Reservation Tribal Council wrote the court, advocating placement of the Minor with Jacki K., “an extended family member and Band member and resident of the Grand Portage Reservation,” and recommending the Minor’s eventual adoption by Jacki K., should the Mother’s parental rights should be terminated. The chairman’s letter stated that the Minor’s adoption by a Band family would give him the “added benefit” of helping “develop his tribal identity.” The letter enclosed an August 23, 2000 report and a home study by the TSW.

The TSW report asserted that Jacki K. was a relative of the Mother, and related that the TSW and the Band’s “Mental Health consultant, Dr. Mary Sa,” visited the Minor and Appellants in Los Angeles during August 2000. The report stated that the Minor was “a normal two year old” who “appears to be well bonded to the foster parents who appear to love and nurture him. Due to their wonderful care of him, it is our belief that he will be able to use the skills of bonding to re-bond to an adoptive family and surrounding community.” The report stated that “American Indian children do best when raised in relative homes” and recommended that the Minor be adopted by “Jacki Denise K[.] who is an extended relative of Santos and a Grand Portage Band member. Reunification with his mother is not possible due to her present choices as indicated by the home study from Salem, Oregon.”

The home study of Jacki K. began: “I have known Jacki for the past four years. Jacki is an enrolled member of the Grand Portage Band of Lake Superior [sic] Chippewa Indians.” The study portrayed the proposed adoptive mother, Jacki K., as someone who considered herself “a good person,” and it described Jacki K. as “a single woman of twenty eight years old” who “lives alone in this new trailer that she has placed on her leased land on the Reservation.” The report related that Jacki K.’s 18-year-old brother and her father lived in Grand Portage.

The home study stated that Jacki K. worked full-time as the reservation’s director of education, having been promoted to that position from the reservation’s accounting department. It related that her office was located opposite the Community Center, which has a daycare center for which the Minor would be eligible. The study stated that on May 9, 2000, the TSW called Jacki K. into her office and asked her to “think about” adopting the Minor, whom the TSW described as a toddler born positive for cocaine, who had been placed in foster care at about age three months, appeared to be doing very well, and was eligible for tribal enrollment. On May 10, 2000, the following day, Jacki K. told the TSW that she had spent the evening thinking about the Minor and talking on the telephone with her mother, and that she had decided that she would like to adopt if things did not work out with the Minor’s biological mother. On June 2, 2000, when the TSW telephoned Jacki K. to ask if she were still interested in adopting the Minor, Jacki K. responded affirmatively, and told the TSW that she had received information leading her to believe she was related to the child as a third cousin to the Mother.

On August 30, 2000, the day before the scheduled continued section 366.26 permanent plan hearing, the Mother filed a second section 388 petition, seeking to modify the court’s orders. Again, the Mother sought an order for return of the Minor to her custody or, in the alternative, reinstatement of the reunification services for six months. The petition alleged: “Although late, the mother has done everything requested. She has been clean and sober for some time an[d] has done everything as reflected in the attached declarations . . . .” The attachments indicated that the Mother had completed an outpatient drug and alcohol treatment program on May 26, 2000, and was regularly attending Alcoholic Anonymous and Narcotics Anonymous meetings.

The court denied the Mother’s section 388 petition—in part because the Mother continued to reside in Oregon and Oregon authorities refused to approve her home.

The court continued the section 366.26 permanent plan hearing to the next day.

g. September 1, 2000

The trial court received the report of Dixie Noble, Ph.D., the psychologist the court had appointed on April 27, 2000, four months earlier. Noble’s report recommended that the Minor “be placed in Kinship care with Jacki K. at the Tribal land in Grand Portage Minnesota.” Noble grounded this recommendation on the following: “Jacki has been carefully evaluated by Tribal authorities and has been found to be an excellent potential adoptive mother for Santos. In her care, Santos will also have the advantage of a culturally endowed environment, a true belonging, and a concerned and loving extended family. This will far outweigh any emotional traumata [sz'c] he may experience while making the adjustment.” Her report also claimed that “Santos is not now emotionally fragile. He would not be catastrophically damaged by such a shift in homes. No doubt he will experience some emotional discomfort over time. It most likely will not be severe and enduring, thanks to the firm foundation of bonding with the birth mother during pregnancy and 9 days post birth and the 18 months of excellent care provided by the Foster parents.” (Italics added.)

Noble’s report described the Minor as “a cute, olive skinned, dark-eyed, 21-month-old Chippawa [szc] boy who was well groomed and casually dressed for play. . . . Santos appeared to understand both Spanish and English. However, Spanish is the language that he has begun to try and speak. [5D Santos was spirited, but not frenetic. ... In ... his play, Santos[’] intelligence, grasp of physical situations and emotional cues from others, his common sense, all appeared to be well within normal limits if not slightly high.”

Noble described Lucila G. as “a very pleasant, kind woman, not quite middle-aged woman who appeared to be in excellent physical health. She was slightly short by Caucasian standards but well within the normal limits for her background and ethnicity. . . . She was fully cooperative and gracious throughout the evaluation process. At the same time, she did not become so involved with others that she was not mindful of the children. [1Q Although no psychological testing was done, Lucille [sz'c] appeared to be intelligent, thoughtful without undue tension or anxiety. . . . flQ It was clear that she has provided a warm and nurturing environment for Santos to thrive and grow with ease. She was not overly clinging and attentive with him but responded to his needs in a natural unhurried manner. Her mothering and nurturing skills are entirely appropriate and successful. All the children approach her without fear, yet with respect. . . . [^ Although her spoken English is limited, she understands very well and can communicate effectively in the English that she does speak. Lucille [szc] is deeply attached to Santos and has fully invested herself in his care. Having made such a selfless personal investment, it is clear to see that she would feel his absence with emotional pain and loss. At the same time, as she has stated to the tribal social workers, if it is best for Santos to leave them, she would facilitate the transition in order to make it as easy as possible for Santos.”

Noble described Arturo G. as “quieter and not as outreaching as Lucille [szc], yet he was sensitive and responsive to others. . . . HQ Because of his greater reserve, it was difficult to get to know Arturo in any depth .... He was perfectly comfortable with the children running around, trying different things, talking and excited about all visitors. Arturo appeared to be patient, steady and not easily irritated. He did not demonstrate any signs or symptoms of underlying psychopathology in his tone of voice, facial expressions, body language or demeanor. Apparently Arturo does not speak English as well as Lucille [sz'c], but the two do cooperate and get along nicely as a couple. It is my surmise that such a couple together enjoying the positive, respectful love of the children most likely give as much as they receive, if not more. Although Arturo would deeply prefer to have Santos remain in their home, he too, like Lucille [sz'c] would be willing to facilitate a transition for Santos to a new location.”

Noble interviewed Jan Gullet, the Grand Portage TSW, and the tribal mental health consultant, Mary Sa. She also spoke with the Band’s local attorney and interviewed the Mother. She did not interview Jacki K. But she states in her report: “Jacki has been carefully investigated by background checks and home studies. She is well known in the Tribal community for her good work with children and her fine character since her own childhood. Jacki is a distant relative of Kathleen; therefore, she is a blood relative to Santos. As an Indian person, a Tribal member, a relative of the biological mother and a well-trained, experienced child guidance provider, Jacki is a highly qualified prospective adoptive mother for Santos and is in exact keeping with the requirements of ICWA.”

Noble’s report showed that she spent the largest proportion of her time with Jan Gullet, Mary Sa, and the Mother. In the course of her evaluation, Noble did not meet with Appellants individually, as she had with the Mother and the Band’s representatives, with whom she met for one and two hours respectively. Noble wrote in passing in her evaluation that she did not know whether Appellants “have ever had an infant of their own.”

In her evaluation of this case, Noble discussed the terms “bonding” and “attachment” at some length, associating “bonding” with the prenatal period, birth, and the first few days after birth. “If the [prenatal and immediate post-natal] bonding is successful,” she states, “then the infant can begin to form ‘attachments’ to others.” With respect to foster care, Noble stated that “[i]f bonding has not occurred, then subsequent ‘attachments’ would not be possible.” She then concluded: “Attachments can be lost and rebuilt. Bonding cannot. It is much better for the child if as little change as possible can be provided for at least the first year of life. ... A two-year-old still requires careful transitions and avoidance of frequent disruptions of caregivers. After the age of three or four years, the risk of emotional harm is less provided the child is well adjusted.”

With regard to adoption, Noble admitted that “[ajdoption is not risk-free. It has become increasingly clear that adoptees do not ‘forget’ about their birth parents.” Noble claimed that “ ‘Kinship’ adoptions are more successful than non-relative adoptions . . . ‘open’ adoptions are more successful.... [ID The rate of adolescent suicide has increased alarmingly .... The highest rate of adolescent suicide is among Native American children . . . [and] is high on the reservations. It is high in urban families. It is highest when non-Indian families adopt Indian children.” Noble concludes that “Santos is Not Bonded to Them [Appellants]. Santos is bonded to his birth mother who is unable to care for him.”

Because Noble’s report had not been provided to the parties prior to the day of the hearing, the court continued the matter to September 28, 2000, for a contested section 366.26 hearing.

h. September 28-October 3, 2000

The section 366.26 hearing, originally scheduled for January 18, 2000, took place as rescheduled on September 28, 2000. Jacki K., the prospective adoptive mother for the Minor, was called. She testified that she had never seen the Minor before September 2000, and that she had seen him twice, once for an hour, and the second time for other for an hour and a half. She related that she first had learned of the Minor’s existence from the tribal council in May 2000, and she described the reservation and her life there.

Mary Sa, a “prelicensed” psychologist and a provider of mental health services for the Grand Portage Reservation, testified briefly concerning her observations of Jacki K.’s second visit with the Minor, and related that she was available to provide mental health services, such as play therapy, to the Minor and Jacki K.

Dixie Noble, Ph.D., testified that she had conducted an evaluation of the Minor and Appellants. She had observed the Minor on three occasions in order to formulate her opinions: (1) on August 2, 2000, for a half-hour or 40 minutes, at the Rosemary Day Care Center, in the presence of the Mother and Lucila G., other foster children, and agency staff; (2) on August 13, 2000, for more than an hour, at Appellants’ home, where the Minor, other foster children, Appellants, Ms. Sa, Ms. Gullet, and two or three representatives of the Department were present; and (3) briefly in the court waiting room on August 31, 2000. In toto, Noble had spent approximately 10 minutes alone with the Minor, in an encounter during the August 13, 2000 visit.

Noble did not interview Lucila G. or Arturo G. at any time.

Noble does not speak Spanish, and the court had directed her to avail herself of the services of a Spanish-speaking social worker or someone from the interpreters’ office for interviews of Appellants in the course of her evaluation. Noble, however, had no interpreter or Spanish-speaking social worker with her during the August 2, 2000 “conjoint visit at Rosemary Child Services,” one of the two meetings with Lucila G. upon which Noble based her evaluation. During Noble’s second and final meeting with Lucila G., the August 13, 2000 visit to Appellants’ home, Ms. Sa and a social worker were available to translate. Notwithstanding the availability of translators, Noble testified that she did not interview Lucila G. during either of her two meetings with her, but that she had a few casual “conversational comments” with the de facto mother. Arturo G. was present during Noble’s August Í3, 2000 visit at Appellants’ home. This was Noble’s only meeting with the de facto father, and Noble testified that she did not speak with him.

Noble testified that because she did not observe the Minor to exhibit any problematic behavior or profound developmental disability, his best interests lie in being “moved to be with his tribe and his family.” Her view was that “transported” children, i.e., children “that [ízc] have not been kept with the Indian heritage,” “often end up very badly in adolescence.”

The Department presented as a witness clinical psychologist, Alfredo E. Crespo, Ph.D., whose report was admitted into evidence. Dr. Crespo’s report related that during his interview with the Minor and Appellants, the Minor consistently referred to Appellants as “ ‘mamma’ and ‘papa.’ ” Crespo’s report observed that when Arturo G. was asked to leave the room and did so, the Minor began to cry, became “clingy,” and had to be held by his foster mother while he intermittently cried for his “papa.” Crespo decided not to try to see the Minor alone because the Minor became “clingy” with Arturo G. and “hugged him tightly while exclaiming ‘ “papa, papa.’ ”

In his summary, Crespo concluded “that Santos is attached to [Appellants] and ... he has been integrated into their lives. In my opinion the disruption of his attachment to the only family he has known will likely create intense immediate distress should the Court decide to send him to live with the Chippewa tribe’s proposed prospective adoptive mother in Minnesota. The disruption of his attachment also raises long-range risk factors that create additional concerns about his future adjustment and emotional health in the event that the Court follows Dr. Noble’s recommendations.”

Crespo also noted that the Minor’s present attachment to Appellants was insecure, probably stemming from Appellants’ own insecurities as they faced the possibly of losing the Minor. But, Crespo opined, “it is quite likely that Santosf] attachment pattern may become secure in nature should the Court decide to sanction the adoption requested by his foster parents.”

Citing certain professional authority, Crespo also presented definitions of “bonding” and “attachment” that differed from Noble’s. For Crespo, “attachment is defined as that which stems from the child and bonding as that which stems from the caretaker.” He repudiated the claim that a mother and child bond during the first few days of life.

With respect to the short-range outlook for Santos, Crespo asserted that “there is no question that the minor will be distressed by separation from the only stable and loving caregivers he has known during his life. This distress can be predicted to be additionally complicated by the prospective adoptive mother’s plan for daycare, a care-taking arrangement quite different from that to which he has become accustomed in his foster home. ... In addition, given that he has been raised in a Spanish speaking home, his attachment to his prospective adoptive Chippewa mother will be further complicated by a language barrier.”

With respect to long-range prediction, Crespo stated that “there is a great and growing body of research which suggests that disrupted attachments is [sic] associated with multiple emotional and psychological problems. The loss of a mother before age 12, for example, has been found to be a predisposing factor for [depression in adult life. In my opinion, allowing the foster parents to adopt him precludes risk factors for long-term emotional problems except for those associated generally with [a]doption. However, the foster parents, the foster mother in particular, have already displayed a willingness to learn more about and respect as well as celebrate Santos’ Native American heritage.”

The Department’s CSW was called as a witness. She testified to case activity notes for May 8, 2000, which reported a conversation the Reservation TSW had had with the Department’s CSW. As paraphrased by the court, the notes related that the TSW had said she would seek a letter from the Tribe stating its position regarding the case, that she felt that the Mother should get more reunification services, and that if the Minor could not be returned to his Mother, he could be adopted by Appellants.

Lucila G. testified briefly concerning the Minor’s health problems, among them respiratory problems, which correlated with changes in the weather. She believed that the Minor suffered from asthma.

At closing argument, the Department submitted on the court’s tentative decision and “acknowledg[ed] ICWA placement preferences.”

The Minor opposed the proposed removal from his de facto family. He urged that the contemplated uprooting from his family and a change to an entirely different environment would be calamitous, and argued that his eventual connection to the Tribe did not outweigh the serious trauma from being uprooted from a loving home.

After the conclusion of testimony at the contested permanent plan hearing, the trial court terminated the parental rights of the Mother and the Father and found that the Minor was likely to be adopted. The trial court, commenting that for the Minor, “being Indian is not an optional lifestyle ... he is a Grand Portage child . . . ,” ordered that the Minor be placed in the adoptive home of Jacki K., and denied Appellants’ request for a stay.

Appellants’ Contentions

Appellants contend that:

(1) the ICWA is unconstitutional;

(2) the ICWA may not be applied constitutionally to this case because the Minor is not part of an existing Indian family, and neither he nor his mother participated in Indian tribal life;

(3) the Tribe waived its right to assert the application of the ICWA; and

(4) the court applied an incorrect standard and abused its discretion in its determination that good cause did not exist to depart from ICWA placement preferences.

Discussion

I. Controlling Authority

A. The Indian Child Welfare Act

The ICWA (25 U.S.C. § 1901 et seq.) 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. (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32 [109 S.Ct. 1597, 1599-1600, 104 L.Ed.2d 29].) Testimony at preenactment hearings attributed the high rates of removal of Indian children from their homes to ‘ “government authorities who have no basis for intelligently evaluating the cultural and social premises underlying Indian home life and childrearing’ ” (id. at p. 34 [109 S.Ct. at p. 1601]), among them the Indian practice of leaving children with persons outside the nuclear family, which often had been misinterpreted as neglect. (Id. at p. 35, fn. 4 [109 S.Ct. at p. 1601].)

The stated purpose of the ICWA is to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster care or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” (25 U.S.C. § 1902.) The congressional findings in support of the ICWA cite the interest of the United States in protecting Indian children who are members of or eligible for membership in an Indian tribe. (25 U.S.C. § 1901(3).)

Title I of the ICWA applies to child custody proceedings (25 U.S.C. § 1903) that involve an Indian child. (25 U.S.C. § 1903(4).) “Indian child” is defined in the Act as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” (25 U.S.C. § 1903(4).) The ICWA defines an Indian child’s tribe as (a) an Indian tribe in which an Indian child is a member or eligible for membership, or (b) in the case of an Indian child who is a member of or eligible for membership in more than one tribe, the Indian tribe with which the Indian child has the more significant contacts. (25 U.S.C. § 1903(5).) Each Indian tribe has sole authority to determine its membership criteria, and to decide who meets those criteria. (Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 72, fit. 32 [98 S.Ct. 1670, 1684, 56 L.Ed.2d 106].) Formal membership requirements differ from tribe to tribe, as does each tribe’s method of keeping track of its own membership. (Ibid.)

If, in an involuntary child custody proceeding, probable cause exists to believe that the proceeding involves an Indian child within the meaning of the Act, the Indian child’s tribe must be notified of the pendency of the action, and of its right to intervene. (25 U.S.C. § 1912.) “In any involuntary proceeding in a State court, where the court knows or has reason, to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary [of the Department of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe.” (Ibid.) Actual notice to the tribe has been found sufficient, notwithstanding failure to serve notice by registered mail. (Matter of the Dependency and Neglect of A.L. (S.D. 1989) 442 N.W.2d 233, 236.) An Indian child’s tribe may intervene at any point in the proceedings. (25 U.S.C. § 1911.)

On petition of either parent or of the Indian child’s tribe, state court proceedings for foster care placement or for termination of parental rights to an Indian child must be transferred to a tribal court unless “good cause exists,” either parent objects, or the tribe declines jurisdiction. (25 U.S.C. § 1911(b).) If transfer does not occur, the matter remains in state court.

The ICWA contains adoptive, foster care, and preadoptive placement preferences. (25 U.S.C. § 1915.) In any adoptive placement of an Indian child, preference shall be given, in the absence of good cause to the contrary, to a placement with: “(1) [A] member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families” (25 U.S.C. § 1915(a)); there may be a different order of preference if provided for by tribal resolution, so long as the placement is the least restrictive appropriate to the particular needs the child. (25 U.S.C. § 1915(c).) Good cause for departure from the placement preferences is not defined. The ICWA provides that, where appropriate, the preference of the Indian child or parent shall be considered. (Ibid.)

The ICWA expressly directed the Secretary of the Department of the Interior to promulgate regulations to carry out the Act within 180 days of its enactment. (25 U.S.C. § 1952.) Instead, the Bureau of Indian Affairs (BIA) issued guidelines (Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584 (Nov. 26, 1979)) that are instructive, but not controlling or binding on state court determinations. (Id. at 67584; In re Michael G. (1998) 63 Cal.App.4th 700, 714 [74 Cal.Rptr.2d 642].)

B. California’s Implementation of the ICWA

Rule 1439 of the California Rules of Court implements the ICWA for California courts. Rule 1439 incorporates the ICWA definitions of Indian child, Indian child’s tribe, and Indian tribe without modification (Cal. Rules of Court, rule 1439(a)(1), (2), (6)) and provides that the ICWA applies when a tribe determines that an unmarried minor is: (A) a member of an Indian tribe; or (B) eligible for membership in an Indian tribe and a biological child of a tribe member. (Cal. Rules of Court, rule 1439(g)(5).)

Rule 1439(f) of the California Rules of Court is virtually identical to title 25 of the United States Code section 1912 concerning the manner in which an Indian child’s tribe is to be notified; it adds that notice to the tribe shall be to the tribal chairman unless the tribe has designated another agent for service (Cal. Rules of Court, rule 1439(f)(1), (2)), and that notice must be sent to all tribes of which the child may be a member or eligible for membership. (Cal. Rules of Court, rule 1439(f)(3).)

Rule 1439 of the California Rules of Court provides that if the court has reason to know a child may be an Indian child within the meaning of the ICWA, the court is required to proceed as if the child were an Indian child, while at the same time conducting all dependency hearings in compliance with the timelines set forth in the Welfare and Institutions Code. (Cal. Rules of Court, rule 1439(e).)

Rule 1439(k) of the California Rules of Court addresses standards and preferences in placements of Indian children. “Foster and adoptive placements of Indian children must follow a specified order of preference in the absence of good cause to the contrary.” (Cal. Rules of Court, rule 1439(k).) As under the ICWA, the foster or preadoptive placement must be in the least restrictive setting, within reasonable proximity to the Indian child’s home, and be capable of meeting any special needs of the Indian child (Cal. Rules of Court, rule 1439(k)); the priorities for foster and preadoptive placements are identical to those stated in the ICWA, as is the ability of the tribe to alter the statutorily stated preferences by resolution. (Cal. Rules of Court, rule 1439(k)(l), (2), (6).) Rule 1439 modifies the ICWA by adding a provision that states that an Indian child may be placed in a non-Native American home only if the court finds that a diligent search has failed to locate a suitable Native American home. (Cal. Rules Court, rule 1439(k)(3).) Rule 1439(k)(4) fills in the ICWA’s silence regarding what constitutes good cause for deviation from placement preferences, providing that good cause to modify placement preferences may include the following considerations:

“(A) the requests of the parent or Indian custodian;

“(B) the requests of the Indian child;

“(C) the extraordinary physical or emotional needs of the Indian child as established by a qualified expert witness.” (Cal. Rules of Court, rule 1439(k)(4).) Whereas the ICWA (25 U.S.C. § 1915 (c)) allows a court to consider the preferences and wishes of the Indian child and parent, rule 1439 (k)(7) makes this consideration mandatory [“The preferences and wishes of the Indian child . . . shall be considered . . . .” (Italics added.)], without any age limitation (Cal. Rules of Court, rule 1439(k)(7)) [contrary to the age limit suggested in the BIA guidelines]).

C. The Existing Indian Family Doctrine

While the stated purpose of the ICWA is to serve the best interests of the Native American children, families, and tribes, these interests are often in tension. To address situations in which application of the ICWA is unwarranted or unconstitutional, courts have applied an analysis known as the “existing Indian family doctrine,” and have declined to apply the ICWA to situations in which a child is not being removed from an existing Indian family.

The “existing Indian