IN RE: JACQUELINE L. et al. (1995)

OPINION

INTRODUCTION

 There is a big difference between being adopted and having only a legal guardian.   Adoptions are permanent.   For better or worse, the parties are stuck with each other.   Not so with guardianships, which can be ended with a court hearing.   Thus it is only common sense that for children who cannot be returned to their natural parents, the law favors adoption.   The preference is the legal expression of Robert Frost's famous dictum that home is the place where they have to take you in.¹

 In the case before us, an Indian family (the wife is a member of the Hopi tribe) seeks to adopt two young children who were abandoned in Orange County by their natural parents (who are members of the Kiowa and Comanche tribes).   There is no dispute the children cannot be returned to their natural parents;  time and again the juvenile court found such a return would be “detrimental” to the children.   Nevertheless, the juvenile court judge ordered legal guardianship instead of adoption.   He noted that the prospective adoptive parents were already doing much to acquaint the children with the culture of the tribes to which their natural parents belong, but selected guardianship rather than adoption so the children would have increased opportunities for tribal acculturation afforded by an order requiring the children to travel to Oklahoma for four weeks each summer to visit their father's relatives and fellow tribe members.

 We reverse with directions that the children be placed for adoption with the foster family.   Even if we assume that a juvenile court has some leeway to select a permanent plan other than adoption when children cannot be returned to their parents, the children are likely to be adopted, and certain enumerated circumstances are not present, any selection other than adoption still must be sufficiently weighty to offset a child's need for a stable, permanent home.   Merely increased opportunities for tribal acculturation will not do the trick.   As we also explain, nothing in the relevant federal statute, known as the Indian Child Welfare Act, required the juvenile court to make the selection it did.

FACTS

At the heart of this case are two small children, Kyle and Jacqueline L., who happen to have Indian blood.   Jacqueline was born April 12, 1988;  Kyle, June 19, 1989.   Their mother is 100 percent Comanche, their father, 75 percent Kiowa.   The parents' tribes are in Oklahoma.   Neither child has ever resided on the reservations.²

In August 1990, the children's mother left them with their father, stating she no longer wished custody.   The father called Southern California Indian Services for help, and the Orange County Social Services Agency (SSA) took Kyle and Jacqueline into custody.   Finding the children had been neglected, the court ordered them placed in foster care.   SSA sent notices to the Bureau of Indian Affairs and the Comanche and Kiowa tribes.

Next began a series of court hearings and an attendant series of failures to appear by the parents.   The Kiowa tribe petitioned for intervention and jurisdiction was transferred, but the tribe declined the transfer of jurisdiction in March 1991.

In September 1990, Kyle and Jacqueline were placed in an Indian foster home in Norco, California, and made “tremendous progress.”   Reunification efforts with the parents were unsuccessful.   After the children were removed from the father's custody, he sank into alcoholism, lost his job at McDonnell–Douglas, and failed to comply with the reunification plan.   The mother would drop from sight for months, whereabouts unknown, and turn up sporadically to visit the children.

On April 17, 1991, at the six-month review hearing, the court found by clear and convincing evidence the children should not be returned home to their parents because of a substantial risk of detriment.   Shortly after the hearing the father disappeared.

The 12–month hearing was continued numerous times, so that by the time of the hearing, the parents already had 18 months of reunification services, albeit unsuccessful.   Kyle and Jacqueline continued to do well with their foster parents, who decided to adopt them.   The children were found to be adoptable after completion of a permanency placement assessment in August 1991.

In March 1992, the court held a combined 12–month and 18–month review hearing.   The court found returning the children to the parents would create a substantial risk of detriment to their well-being and the parents had not substantially complied with the reunification plan.   The court terminated reunification services and set a selection and implementation hearing (Welf. & Inst.Code, § 366.26) for July 23, 1992.

In the interim, the Kiowa tribe again petitioned to transfer jurisdiction, and the Comanche tribe petitioned to intervene and transfer jurisdiction.   The court noted the children had now been in their foster home for 33 months, the tribes knew or should have known that intervention would be required early in the proceedings, and the Kiowa tribe had previously intervened, then declined jurisdiction.   The court denied the transfer petitions, but allowed both tribes to intervene.

The selection and implementation hearing was continued again and again over the next six months.   Finally, on November 10, 1993, the court issued a written decision.   The court found neither parent had any contact with the children for years, the parents had failed to comply with reunification services and the services were properly ended.   Still, the court declined to terminate parental rights.   Instead, the court found guardianship the best permanent plan for the children because “the children would profit from a long-term relationship with their father and their extended family and tribes in Oklahoma.”

The court named the foster parents the children's caretakers, then made a visitation order requiring the children to spend four weeks in the summer with the Kiowa and Comanche tribes.   The judge specifically directed the visitation time to “be chosen to maximize the acculturation of the minors to their tribes—periods of time set aside for cultural education of Indian children or tribal celebrations.”

The foster parents, SSA and the minors appeal, basically contending the judge had no choice but to terminate the parental rights of the natural parents and select adoption as the permanent plan for the children.   We agree and reverse.

DISCUSSION

California Law

We begin our analysis with the fact that by the time the case reached the selection and implementation hearing, it was a foregone conclusion that Kyle and Jacqueline could not be returned to their parents.³  Whatever permanent plan the court might have selected for the two children, reunification with their parents was not going to be one of them.

 The purpose of a Welfare and Institutions Code section 366.26 ⁴ selection and implementation hearing is to select and implement a permanent placement for children who cannot be returned to their parents' custody.   As our Supreme Court pointed out in Marilyn H., supra, 5 Cal.4th at page 305, 19 Cal.Rptr.2d 544, 851 P.2d 826, once reunification services are terminated, the focus of the welfare agency “shifts from monitoring the parents' progress toward reunification to determining the appropriate placement plan for the child.”  (See also In re Taya C. (1991) 2 Cal.App.4th 1, 7, 2 Cal.Rptr.2d 810.)

 The shift in focus is only logical.   By the time of the 366.26 hearing, reunification efforts have gone on for at least 12 months, and in many cases, as here, for 18 months or more.   At that point “multiple specific findings of parental unfitness” have already been made by the juvenile court.   (Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253, 19 Cal.Rptr.2d 698, 851 P.2d 1307.)   Further, such findings have been made in the face of a presumption that favored the return of the child.   A case reaches the selection and implementation stage only after parental unfitness has continuously been shown despite the presumption.  (Ibid.)

 In the present case, there has been no appeal of any of the multiple findings that it would be detrimental to return Kyle and Jacqueline to their natural parents.   None of the parties disputes the fact the matter properly arrived at a section 366.26 hearing.   Having thus reached the selection and implementation stage, the juvenile court was left with but three alternatives:  adoption, guardianship or long-term foster care.  (Taya C., supra, 2 Cal.App.4th at p. 7, 2 Cal.Rptr.2d 810.)

In deciding between these alternatives, the juvenile court was next called upon to ascertain the adoptability of the two children.   Subdivision (c)(1) provides that if the court determines by clear and convincing evidence that it is likely a child will be adopted, the prior decision to terminate reunification services for the natural parents then constitutes a “sufficient” basis to terminate parental rights unless the termination would be “detrimental” due to one of several circumstances enumerated in subdivision (c)(1)(A–D).⁵  We need not belabor the idea that adoption is not suitable as a permanent plan for a child who is not likely to be adopted.   Here the court found that Jacqueline and Kyle were likely to be adopted.

 Under section 366.26, subdivision (c)(1), if the court finds by clear and convincing evidence the child will likely be adopted, negative findings made at previous hearings pursuant to section 366.21 or section 366.22 involving whether to return the minor to his or her parents “shall then constitute a sufficient basis for termination of parental rights․”   Once adoption is found likely, “termination of parental rights at the section 366.26 hearing is relatively automatic.”  (In re Zacharia D. (1993) 6 Cal.4th 435, 447, 24 Cal.Rptr.2d 751, 862 P.2d 751.)

The crux of this case is the distance between “automatic” and “relatively automatic.”   That is, how much leeway does a court have to select a permanent plan other than adoption when (a) repeated findings of detriment preclude return to the natural parents, (b) the children are likely to be adopted, and (c) the four specified circumstances set forth in subdivision (c)(1)(A–D) are absent?

If we were to look only at subdivision (c)(1), the answer would be none at all.  In re Jennifer J. (1992) 8 Cal.App.4th 1080, 10 Cal.Rptr.2d 813 specifically rejected the idea that considerations other than those set forth in the “four alphabetic exceptions” to termination of parental rights set forth in section 366.26, subdivision (c)(1)(A) through (D) are available to defeat the termination of parental rights at a selection and implementation hearing.  (See id. at p. 1091, 10 Cal.Rptr.2d 813.)   Examining the structure of and legislative history behind section 366.26, the court declared “there is no window of evidentiary opportunity for a parent to show that in some general way the ‘interests' of the child will be fostered by an order based on some consideration not set forth in section 366.26.”  (Id. at p. 1090, 10 Cal.Rptr.2d 813.)   Similarly, there is language in In re Beatrice M. (1994) 29 Cal.App.4th 1411, 35 Cal.Rptr.2d 162 to the effect that parental termination is inevitable provided none of the four alphabetic exceptions are present:  “At the selection and implementation hearing held pursuant to section 366.26, a juvenile court must make one of four possible alternative permanent plans for a minor child․   The permanent plan preferred by the Legislature is adoption.  [Citation.]   If a court finds a child adoptable, it must terminate parental rights absent four specified circumstances in which it would be detrimental․”  (Id. at p. 1416, 35 Cal.Rptr.2d 162.)

Neither Jennifer J. nor Beatrice M., however, specifically addressed subdivision (c)(4) of section 366.26, the bare text of which seems to indicate that guardianship is a possibility under circumstances where a child is both likely to be adopted and none of the alphabetic exceptions applies.   The subdivision leads off with these words:  “If the court finds that adoption of the minor or termination of parental rights is not in the interests of the minor, or that one of the conditions in subparagraph (A), (B), (C), or (D) of paragraph (1) or in paragraph (2) applies, the court shall either order that the present caretakers or other appropriate persons shall become legal guardians of the minor or order that the minor remain in long-term foster care.”

Not only does the conjunction “or” separate the idea that adoption might not be in the “interests” of the minor from the alphabetic exceptions, but the comma after the word “minor” just before the conjunction emphasizes the distinctiveness of the thought before the comma (that adoption of the minor might not be in the “interests” of the minor) from the thought after the comma (that one of the conditions in the alphabetic exceptions applies).  (Cf. Halbert's Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1245, 8 Cal.Rptr.2d 298 [significance of comma before conjunction “or”].)  Just looking at the language of subdivision (c)(4) leads one to conclude that it is possible for a child to be adoptable, for the alphabetic exceptions not to apply, and for the court to select a permanent plan other than adoption.

Then again, while it did not discuss subdivision (c)(4), Jennifer J.'s point about the narrow architecture of section 366.26 is insightful.   It is highly anomalous that section 366.26 should allow some formless “interest” to defeat the termination of parental rights in subdivision (c)(4) when subdivision (c)(1) is so specific in setting forth such exceptions.

 Also, proper textual exegesis requires that a statute be construed as a whole, rather than in atomistic bits.   One of the alphabetic exceptions listed in subdivision (c)(1)—subdivision (c)(1)(C) to be exact—sets out the generalized idea that adoption might be “undesirable,” but makes that idea only one portion of a three-part gauntlet, the other two portions of which include placement in a residential treatment facility and the absence of impediments to finding the child a “permanent family placement if the parents cannot resume custody when residential care is no longer needed.”   It seems highly doubtful that the Legislature should have so hedged the generalized use of the undesirability of adoption in subdivision (c)(1)(C), yet left the juvenile court free to accomplish the same thing in subdivision (c)(4) via some amorphous “interest.”

 Fortunately, we are spared the need to resolve the problem of whether subdivision (c)(4) provides an independent ground not otherwise found in subdivision (c)(1) to select guardianship over adoption.   Even if it does, there was insufficient evidence of such a ground in this case:  If the “interest” mentioned in subdivision (c)(4) is an independent interest, it is not just any old interest.   It must be sufficiently weighty to overcome the need of young children for “the most permanent and secure alternative that can be afforded them.”  (See Beatrice M., supra, 29 Cal.App.4th at p. 1419, 35 Cal.Rptr.2d 162.)   No such interest was shown in this case.

In selecting a permanent plan for an adoptable child, the court must first and foremost bear in mind the basic preference for adoption over nonpermanent forms of placement, including guardianship.  (See § 366.26, subd. (b) [indicating overall purpose of selection and implementation hearing is “to provide stable, permanent homes”];  § 366.25, subd. (a) [same];  Beatrice M., supra, 29 Cal.App.4th at p. 1416, 35 Cal.Rptr.2d 162 [“The permanent plan preferred by the Legislature is adoption.”];  In re Autumn H. (1994) 27 Cal.App.4th 567, 573, 32 Cal.Rptr.2d 535 [“Adoption, where possible, is the permanent plan preferred by the Legislature.”];  In re Brian R. (1991) 2 Cal.App.4th 904, 923–924, 3 Cal.Rptr.2d 768 [“if a child is adoptable, as Brian is, adoption is the statutorily preferred permanent plan”];  Jones T. v. Superior Court (1989) 215 Cal.App.3d 240, 251, 264 Cal.Rptr. 4 [“Although guardianship may be a more stable solution than foster care, it is not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.”];   In re Debra M. (1987) 189 Cal.App.3d 1032, 1038, 234 Cal.Rptr. 739 [phrase “stable, permanent homes” shows legislative preference for early adoptability of children as distinct from “foster care placements and other potentially temporary provisions for care” such as, presumably, guardianship];  In re Mark V. (1986) 177 Cal.App.3d 754, 760–762, 225 Cal.Rptr. 460 [noting legislative preference for permanent placement];  see also In re Heather B. (1992) 9 Cal.App.4th 535, 558–559, 11 Cal.Rptr.2d 891 [distinguishing unconstitutional New York statutory scheme from valid California scheme by noting “primary significance” in California scheme of child's interest in a “secure and permanent” home”].)

 The need for permanence and stability in a young child's life cannot, of course, be stressed too much.   Once reunification efforts have failed that is the child's paramount need.   As Beatrice M. put it, “The Legislature has decreed, however, that guardianship is not in the best interests of children who cannot be returned to their parents.   These children can be afforded the best possible opportunity to get on with the task of growing up by placing them in the most permanent and secure alternative that can be afforded them.”  (Beatrice M., supra, 29 Cal.App.4th at p. 1419, 35 Cal.Rptr.2d 162.)   As an old song once put it, “you gotta have a home.”

Guardianships, as Jones T. emphasized, are deficient in the goal of ending the “uncertainty of foster care” and allowing “the dependent child to form a long-lasting emotional attachment to a permanent caretaker.”   A guardianship is “not irrevocable and thus falls short of the secure and permanent placement intended by the Legislature.”  (See Jones T. v. Superior Court, supra, 215 Cal.App.3d at p. 251, 264 Cal.Rptr. 4.)   A guardianship is so revocable, in fact, that in a hearing on a petition to terminate it, that petition is to be “liberally construed in favor of its sufficiency.”  (Cal.Rules of Court, rule 1432(a) [“A petition for modification shall be liberally construed in favor of its sufficiency.”];   cf. Cal.Rules of Court, rule 1465(c) [“A petition to terminate a guardianship established by the juvenile court ․ shall be filed in juvenile court.   The procedures described in rule 1432 shall be followed․”].)

It is apparent from the juvenile court's statement of decision that selection of guardianship was based on the benefit the children would receive from “a long-term relationship with their father and their extended family and tribes in Oklahoma.”

 As to the father, the court did not elaborate.   No doubt, however, all dependent children benefit to some extent from a long-term relationship with their natural parents, at least when the idea of such a long-term relationship is considered in a vacuum.  “ ‘Interaction between [a] natural parent and child will always confer some incidental benefit to the child․’ ”  (Beatrice M., supra, 29 Cal.App.4th at p. 1419, 35 Cal.Rptr.2d 162, quoting Autumn H., supra, 27 Cal.App.4th at p. 575, 32 Cal.Rptr.2d 535, emphasis added.)  Beatrice M., however, is quite clear that even “frequent and loving” contact between natural parents to whom a child cannot be returned is insufficient to justify the selection of guardianship in place of adoption.  (See Beatrice M., supra, 29 Cal.App.4th at p. 1418, 35 Cal.Rptr.2d 162.)   The “kind of parent/child relationship” necessary to defeat adoption “must be sufficiently strong that the child would suffer detriment from its termination.”  (Ibid.)

Similarly, Autumn H. declared that the natural parent's relationship with the dependent child must promote “the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents.”  (Autumn H., supra, 27 Cal.App.4th at p. 575, 32 Cal.Rptr.2d 535.)   The father's relationship with the children here falls short of the kind of relationship required to thwart adoption under subdivision (c)(1)(A).   In Beatrice M., the natural parents went so far as to move into the same apartment complex as the caretaker (the maternal aunt), had daily contact with the children and “often” ate together “at one apartment or the other.”  (See Beatrice M., supra, 29 Cal.App.4th at p. 1417, 35 Cal.Rptr.2d 162.)   Even so, their relationship was not sufficient under subdivision (c)(1)(A) to defeat termination of their rights.   They did “not stand in a parental role.”  (See id. at p. 1420, 35 Cal.Rptr.2d 162.)   If the relationship in Beatrice M. was insufficient to defeat adoption, how much less so the father's relationship here.

Moreover, if the relationship, as in Beatrice M., is insufficient under subdivision (c)(1)(A)—which explicitly mentions the “continuing” relationship between the natural parent and the dependent child—it is clearly insufficient under any arguable “interest” in subdivision (c)(4).   To interpret subdivision (c)(4) to allow a lesser showing on the very same criteria explicitly mentioned in subdivision (c)(1)(A) would render subdivision (c)(1)(A) redundant.   Whatever the “interest” might mean in subdivision (c)(4), it does not include interests already specified in the alphabetic exceptions enumerated in subdivision (c)(1)(A–D).

This leaves the relationship with both the father's relatives and the tribes in Oklahoma.   This relationship does not outweigh the need for a permanent home either.   The trial court's statement of decision found specifically that the prospective adoptive parents had not only “attempted to involve the children in general Indian culture” but had also “tried to educate the children in the Kiowa and Comanche culture, although their resources for education specific to Kiowa and Comanche culture [were] limited.”   The court further found that the prospective parents “have consistently enforced the children's native American identity.”   We would also note that the prospective parents have done far more than the natural father to acquaint the children with the Kiowa culture.

In view of these efforts by the prospective parents, it is clear that the basic justification for the decision to select guardianship over adoption was the marginally increased opportunities that would be afforded the children to learn about the culture of the Kiowa and Comanche tribes if the legal mechanism was in place to compel actual visitation with the tribes in Oklahoma and, concomitantly, visitation with the father's relatives.   The juvenile court said as much in its statement of decision when it ordered the four weeks of visitation to “be chosen to maximize the acculturation of the minors to their tribes—periods of time set aside for cultural education of Indian children or tribal celebrations.”

There is simply no way, however, that merely increased opportunities for acculturation can justify foregoing the chief legislative goal of section 366.26—a stable, permanent home.   All children, whether of Indian heritage or other, have a “compelling interest in a placement that is stable, permanent, and which allows the caretaker to make a full emotional commitment to the child․”  (Zacharia D., supra, 6 Cal.4th at p. 446, 24 Cal.Rptr.2d 751, 862 P.2d 751, internal quotes omitted.)   This is not a case where the court is faced with prospective parents who are hostile or even indifferent to the children's native American heritage;  here, the prospective parents went to some notable length to educate the children about the Kiowa and Comanche tribes.   The trial court simply based its selection on the idea that the children would learn more about those tribes if guardianship was selected and visitation with the tribes was compelled.

 Marginally increased opportunities to learn more about any culture are certainly desirable when considered in a vacuum, but they cannot justify jeopardizing a permanent home for young children.   The price of greater immersion in a culture should not be to grow up parentless.   In view of the legislative preference for permanent homes for dependent children, we hold that increased opportunities to learn more about an ethnic or national culture associated with one's parents or ancestors is legally insufficient under any part of section 366.26 to justify the selection of guardianship over adoption as the permanent plan for dependent children who are likely to be adopted.   The juvenile court had no choice but to terminate parental rights and order adoption.

Federal Law:  The Indian Child Welfare Act

Having found termination was required under California juvenile law, the question arises as to whether federal law compels a different result.

 The Indian Child Welfare Act (ICWA) ⁶ was enacted to protect “the best interests of Indian children,” and to promote “stable and secure Indian tribal entities.”  (In re Crystal K. (1990) 226 Cal.App.3d 655, 661, 276 Cal.Rptr. 619, internal quotations omitted.)   The act was a response to increasing numbers of Indian children being separated from their families and tribes by adoption and placement in non-Indian homes.  (See Dept. of Social Services v. Coleman (1990) 303 S.C. 226, 399 S.E.2d 773, 775.)

 ICWA sections 1911 and 1912 set forth the tribes' rights under the act.   Essentially, these sections declare the tribe may intervene in state child custody proceedings, and the tribe receives jurisdiction in certain circumstances.⁷  Section 1911(b) expressly provides the tribe may decline jurisdiction upon transfer.   Nowhere does the act bestow visitation rights on the tribe.

 There is no dispute the Kiowa tribe exercised its right to intervene early in the proceedings, requested transfer of jurisdiction, then in March 1991, denied transfer of jurisdiction once granted.   The tribe again petitioned to transfer jurisdiction in February 1993.   The hearing on the motion to transfer concluded October 29, 1993, when the Kiowas again filed another petition to transfer jurisdiction.   This time the court denied transfer of jurisdiction, finding it was not timely and noting it had already been granted once, when timely, then denied.   The tribe did not appeal from this decision.

Once the Kiowa tribe received jurisdiction, its rights under the ICWA were met.   The decision not to transfer jurisdiction to the tribes has not been appealed, and is now final.   To interpret the ICWA any other way would be intolerable from the point of view of the Indian child's best interests:  it would mean that he or she would be subject to a virtual recall by tribal authorities, no matter how strong the bonds formed with a prospective adoptive family or, apropos comments of the juvenile court here, how bad the psychological damage to the child caused by removal from that family.

 Additionally, we also hold that once the tribe exercised its right, then denied it, it waived any interest it may have had.   Implied waiver is found in conduct “clear, decisive and unequivocal of a purpose to waive the legal rights involved.”  (See Groves v. Prickett (9th Cir.1970) 420 F.2d 1119, 1126.)   Any act “so inconsistent with the intent to enforce the right in question as to induce a reasonable belief that such right has been relinquished” constitutes waiver.  (Escamilla v. California Ins. Guarantee Assn. (1983) 150 Cal.App.3d 53, 58–59, 197 Cal.Rptr. 463, internal quotes omitted.)   There is substantial evidence in the record that the Kiowa tribe deliberately declined jurisdiction when it learned that transfer of jurisdiction would entail responsibility for foster care payments.

 Finally, even the spirit of the ICWA did not require the juvenile court to select guardianship over adoption under the facts here.   As Justice Crosby noted in his dissent to this court's opinion in In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 282 Cal.Rptr. 105, ICWA's public policy is not subverted when the children involved have never lived on a reservation and are not part of an Indian family broken up by an unwarranted removal by nontribal entities.  (Id. at p. 1625, 282 Cal.Rptr. 105 (dis. opn. of Crosby, J.), citing 25 U.S.C. § 1901(4).)

Here, none of the reasons for which the ICWA was enacted is present.   This is not a case of children living on a reservation snatched from a tribe and an extended family by overzealous social workers.   Kyle and Jacqueline were living in Orange County when their removal was requested by their father.

Kyle and Jacqueline, now almost six and seven years old respectively, have never resided on or near the reservation.⁸  They never lived with the tribe.   Their natural parents essentially gave them up:  the mother by deserting them originally, the father by contacting the Southern California Indian Services leading to SSA's involvement, then disappearing mid-reunification efforts.   With the tribes' and parents' knowledge, these children were placed in a Hopi Indian foster home for nearly three years, forming such strong ties to their foster parents that the juvenile court judge declared in his statement of decision that any removal from those foster parents would cause “irreparable emotional damage.”

Appointed Counsel for Sarah L.

 A final issue presented is whether Sarah L., the children's paternal great aunt, is entitled to appointed counsel to represent her interests in this appeal.

A great aunt who has never had custody of the children and is neither their guardian nor de facto parent has absolutely no right to appointed counsel under California juvenile law.  Welfare and Institutions Code section 317(a) and (b) provide court-appointed counsel only for “a parent or guardian ” financially unable to afford an attorney.⁹  (Emphasis added.)

 Neither does ICWA support court-appointed counsel for a great aunt.   “ICWA states that an Indian parent ‘shall have the right to court-appointed counsel in any removal, placement, or termination proceeding’ where the court has determined that the parent is indigent.”  (D.E.D. v. State (Alaska 1985) 704 P.2d 774, 778, emphasis added, citing 25 U.S.C. § 1912(b).)

 Because the error was ours, this court's decision on the point will, to be fair to appointed counsel, have prospective effect only.   Counsel should be paid for his work through the time when our decision on Sarah L.'s right to appointed counsel becomes final.

CONCLUSION

The order of the juvenile court selecting guardianship instead of adoption and ordering four weeks of visitation each summer with the father's relatives and Kiowa and Comanche tribes is reversed.   The case is remanded to the juvenile court with directions to enter a new order placing the children for adoption and terminating the rights of the parents.

FOOTNOTES

1.   “Home is the place where, when you have to go there,“They have to take you in.”Frost, The Death of the Hired Man (1914) reprinted in Untermeyer, Story Poems (1957) at page 94.

2.   Apparently, Jacqueline “spent some time” in Oklahoma with her relatives during her first seven months and again for approximately four months at age two.

3.   To be more precise, they could not be returned absent a verified petition alleging changed circumstances or new evidence.  (See Welf. & Inst.Code, § 388;  In re Marilyn H. (1993) 5 Cal.4th 295, 305, 19 Cal.Rptr.2d 544, 851 P.2d 826.)

4.   All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.   All references to subdivisions are to section 366.26 of the Welfare and Institutions Code unless otherwise indicated.

5.   These circumstances are sometimes called the “alphabetic” exceptions to subdivision (c)(1).   The circumstances are:  “[¶] (A) The parents or guardians have maintained regular visitation and contact with the minor and the minor would benefit from continuing the relationship.  [¶] (B) A minor 12 years of age or older objects to termination of parental rights.  [¶] (C) The child is placed in a residential treatment facility, adoption is unlikely or undesirable, and continuation of parental rights will not prevent finding the child a permanent family placement if the parents cannot resume custody when residential care is no longer needed.  [¶] (D) The minor is living with a relative or foster parent who is unable or unwilling to adopt the minor because of exceptional circumstances, which do not include an unwillingness to accept legal responsibility for the minor, but who is willing and capable of providing the minor with a stable and permanent environment and the removal of the minor from the physical custody of his or her relative or foster parent would be detrimental to the emotional well-being of the minor.”

6.   The Indian Child Welfare Act is found in 25 U.S.C. sections 1901–1963.   References to sections 1901 et seq. are to the act, unless otherwise indicated.

7.   25 U.S.C. section 1911 states in relevant part:  (b) “In any State court proceeding for ․ termination of parental rights to ․ an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, ․ upon the petition of ․ the Indian child's tribe:  Provided, That such transfer shall be subject to declination by the tribal court of such tribe.”  (Emphasis in original.)  [¶] (c) “In any State court proceeding for ․ termination of parental rights to [ ] an Indian child, the ․ Indian child's tribe shall have a right to intervene at any point in the proceeding.”   Section 1912(a) provides in relevant part:  “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, ․ of the pending proceedings and of their right of intervention.”

8.   Jacqueline's earlier visits to the tribe do not amount to being “domiciled” on the reservation.

9.   California Rule of Court, rule 1412(h)(1)(B) is essentially identical.

SILLS, Presiding Justice.

WALLIN and CROSBY, JJ., concur.