In re Skylar P.

Filed 10/26/06 In re Skylar P. CA5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE COURT^*

APPEAL from a judgment of the Superior Court of Tulare County. Charlotte A. Wittig, Juvenile Court Referee.

Carolyn S. Hurley, under appointment by the Court of Appeal, for Defendant and Appellant.

Kathleen Bales-Lange, County Counsel, and Bryan Walters, Deputy County Counsel, for Plaintiff and Respondent.

-ooOoo-

Alicia E. appeals from an order terminating her parental rights (Welf. & Inst. Code, § 366.26) to her daughter and son.^[1] Her daughter and son are Indian children, as defined by the Indian Child Welfare Act (ICWA; 25 U.S.C. § 1901 et seq.), and therefore are entitled to ICWA’s substantive protections. At the termination hearing, the court made findings paraphrasing ICWA that (1) active efforts had been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family and such efforts proved unsuccessful; and (2) continued custody of the children by the parents was likely to result in serious emotional or physical damage to the children. (See 25 U.S.C. § 1912 (d) & (f).) Appellant questions the sufficiency of the evidence to support both of these findings. She also challenges the court’s denial of a section 388 petition she brought to reopen reunification services. Appellant further claims a month-long trip the children took with their foster parents shortly before an ICWA expert assessed her relationship with the children prejudiced her.

Having reviewed the record, we will affirm the termination under ICWA as well as state law. Nevertheless, we will also take this opportunity to voice our serious concerns regarding the respondent’s approach to the active efforts issue.

PROCEDURAL AND FACTUAL HISTORY

In August 2004, appellant gave birth to Samuel P. who, along with appellant, tested positive for controlled substances. As a result, the Tulare County Health and Human Services Agency (agency) offered appellant and the newborn’s father voluntary family maintenance services. Appellant nevertheless continued to abuse drugs while she cared for the infant and her two-year-old daughter, Skylar. The father knew or should have known of appellant’s substance abuse and yet failed to protect the children. Consequently, in late December 2004, the agency detained the children and initiated the underlying dependency proceedings.

At a combined jurisdictional/dispositional hearing in January 2005, the Tulare County Superior Court exercised its jurisdiction over the children (§ 300, subd. b), based on the parents’ admitted failure to protect the children due to appellant’s substance abuse, and adjudged the children juvenile dependents. It appeared at the time that appellant and the children were eligible for membership in the federally-recognized Citizen Potawatomi Nation (Nation).^[2] As a result, the court found the children may be covered by ICWA and made requisite ICWA findings, as well as findings mandated under California law to remove the children from parental custody and place them in foster care.^[3]

The court ordered reunification services for both parents. The plan in appellant’s case was based on a dual-diagnosis evaluation she recently completed. According to the evaluation, appellant met criteria for methamphetamine dependence and depressive disorder, not otherwise specified. She engaged in self-injurious behaviors and had a reported history of rage, physical aggression, emotional instability, low self-esteem, and conflicted interpersonal relationships. While her illicit substance abuse complicated some of those symptoms, there was evidence to suggest that her aggression and mood instability symptoms were pre-existing. Consequently, a combination of substance abuse treatment and mental health services was necessary for reunification. In addition to drug treatment, random drug testing and parenting classes, appellant’s case plan also called for mental health therapy and a psychiatric evaluation to determine the need for psychotropic medications for her depression.

In the first part of 2005, the parents did not take advantage of court-ordered reunification services. At most, they maintained regular and appropriate visits with their children. The parents began to change their ways in late May 2005. Appellant entered residential drug treatment while the father, who had been incarcerated, began complying with substance abuse treatment and random drug testing through adult drug court. According to the agency, it appeared the parents had faced the effects of their addictions on their children and were seeking appropriate treatment. Otherwise, appellant had failed to comply with her case plan.

The court conducted its six month review in late July 2005. It expressly found “these parents waited too late” for it to continue services. Yet, apparently impressed with these parents’ efforts, the court added “[h]owever, and I rarely say this, I would encourage them to file a 388 in three or four months if they are continuing . . . the path that more recently they shown that they’re capable of doing.” The court then made requisite findings under state law to terminate reunification services and set a section 366.26 hearing to select and implement a permanent plan for the children. The court made no findings under ICWA.^[4]

In anticipation of the section 366.26 hearing, an adoptions social worker with the agency prepared a “366.26 WIC Report” recommending the court find the children adoptable and terminate parental rights. According to the report, the children’s foster parents were very motivated to adopt and were identified as the prospective adoptive parents. The report acknowledged appellant and the father had maintained regular contact with the children but described the children as very attached to the prospective adoptive parents. The report concluded it would be detrimental if the children were separated from their prospective adoptive parents.

Although the section 366.26 hearing was originally set for November 2005, the court twice continued the matter until early February 2006. In the interim, appellant and the father filed separate petitions (§ 388) to reopen reunification efforts based on their continuing efforts to correct the problems underlying the children’s dependency.

Attached to appellant’s petition was evidence that she successfully completed her six months of residential drug treatment in Mothering Heights and was actively involved in its aftercare program. While in Mothering Heights’ residential program, appellant successfully completed Drug Exposed Infant Training and CPR training as well as parenting classes in Domestic Violence Awareness, Self Care and Behavior Management.^[5] Since the six-month review, appellant attended 76 Alcoholics Anonymous or Narcotics Anonymous (AA/NA) meetings during the residential phase of her treatment. She also gave birth to another child, whom the agency did not detain, and applied for section 8 housing.

In aftercare, appellant regularly attended weekly Caring and Sharing meetings as well as five AA/NA meetings per week even though she was only required to attend two such meetings a week. She had also twice tested clean upon the request of the aftercare program. Further, she volunteered weekly at the recovery home and continued to do so even after obtaining employment. It was the opinion of staff that appellant was growing in the recovery process. The staff had no concerns regarding appellant remaining abstinent.

The court set appellant’s petition as well as one filed by the father for hearing on the same date as the section 366.26 hearing. In written opposition to appellant’s section 388 petition, the adoption social worker criticized her showing:

“Two drugs test do not prove enough documentation that she is living a clean and sober life style. Attending twelve steps for a little more than three and a half months last year but does not provide information to 12 step attendance before or after that three and a half month window.”^[6]

The social worker did acknowledge appellant was “attempting to make some positive changes in her life.” However, because of the relationship the children had with their prospective adoptive parents coupled with her criticism of appellant’s showing and the lack of documentation regarding the father’s current circumstances, the social worker recommended the court deny the mother’s petition and conclude the children would be at serious risk of suffering serious physical or emotional harm if returned to the parents’ care and custody.

In the days leading up to the continued section 366.26 hearing, a self-described “assigned ICWA Expert,” who was a licensed clinical social worker and psychologist with the agency filed an “ICWA Affidavit” with the court.^[7] In the affidavit, the ICWA Expert offered her opinion that returning the children to their parents’ custody would likely result in serious emotional or physical damage. She cited the children’s “obvious emotional attachment” to their potential adoptive parents and the lack of any clear signs of attachment to their birth parents. She added the following:

“While it is commendable that this mother is changing her behaviors, she is newly sober and has been residing in a highly structured environment. All of the new daily stressors such as being employed, having an infant to care for, sobriety related tasks, and attempting to parent young children who are not attached to her place her at a high risk for relapse. In addition, her unresolved anger issues and fragile sense of self as a clean and sober person place her at increased risk for relapse. Her parenting history, newly sober state that is not yet habituated into her lifestyle, and not understanding how her drug use impacted her children, all indicate that it is not in the children’s best interest to be reunited with their birth parents at this time.”

In passing, the ICWA Expert also observed: she had interviewed the Nation’s representative who stated the Nation had originally agreed with the children’s adoption. However, when the Nation received a copy of appellant’s section 388 petition, it no longer agreed with adoption as the permanent plan and wanted the parents to receive a few more months of services so that the children might be returned to them.

At the hearing on both the parents’ petitions and the agency’s recommendation to terminate parental rights, appellant presented evidence in response to the agency’s criticism of her section 388 showing. That evidence, which the court admitted, consisted of three clean drug tests conducted in the preceding month as well as photocopies of appellant’s AA/NA meeting attendance cards showing regular attendance through the end of January.

She also offered the testimony of a Mothering Heights staff member, who had supervised appellant’s weekly visits with the children over the past eight months. The staff member described pleasant visits and a lot of interaction between the children and appellant. Skylar, the older of the two, appeared happy to see her parents and both children were openly affectionate with the parents. Lately, it was getting more difficult for Skylar to leave at the end of the visits. She would pout and hide behind the couch.

The agency countered with the testimony of the prospective adoptive father, who testified that the children never asked for their parents.

In addition, county counsel on behalf of the agency represented that the adoption social worker recently spoke to the Nation’s representative and the Nation was in favor of the prospective adoptive parents adopting the children.

Following argument, the court first ruled on the parents’ petitions. The court observed:

“It does appear that the parents have made some pretty substantial changes in their lives and continue to work on the changes that they need to make; however, at this point in the proceedings the Court does have to look at the best interest of the children. And as counsel for the children argued, it does appear that the primary attachment is indeed with the foster parents at this point.

“The Court is finding that while the parents’ circumstances are changing and have changed to a great extent, the proposed modifications are not in the best interest of the children and the Court is denying each of the 388’s. We’ll proceed with the 2-6.”

County counsel asked the court to consider the evidence already received and, because this was an ICWA case, to obtain the parties’ waiver of testimony by the agency’s ICWA Expert. The parties stipulated to accept the ICWA affidavit in lieu of live testimony.

After further argument, none of which related to ICWA, the court followed the agency’s recommendations to terminate parental rights. In its written findings, the court determined, in relevant part, to this appeal:

“Active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the family and such efforts have proved unsuccessful.

“Based upon evidence beyond a reasonable doubt, including qualified expert testify by affidavit, that they continued custody of the child(ren) by the parent(s) or Indian custodians is likely to result in serious emotional or physical damage to the child(ren). . . .

“The extent of progress made by the mother toward alleviating or mitigating the causes necessitating the child(ren)’s placement in foster care has been substantial.”

DISCUSSION

I. ICWA

Introduction

ICWA seeks to protect the best interests of Indian children and promote the stability and security of Indian tribes and families. It does so by establishing minimum federal standards, both substantive and procedural, for the removal of Indian children from their families and their placement in foster or adoptive homes. (25 U.S.C. § 1902; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421.) The standards reflect a federal policy that, where possible, an Indian child should remain in the Indian community. (Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 37.) As Congress expressly found in adopting ICWA, “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” (25 U.S.C. § 1901 (3).)

Relevant to this appeal, those standards require that a state court make certain findings before it may terminate parental rights. (25 U.S.C § 1912(d) & (f).) First, the party seeking termination must “satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (25 U.S.C § 1912(d).) In addition, the court must make “a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”^[8] (25 U.S.C. § 1912(f).)

As previously mentioned, appellant attacks the sufficiency of the evidence to support these findings. She also contends that the active efforts finding as well as the court’s other ICWA finding required proof beyond a reasonable doubt.

A. Active Efforts

Appellant challenges the court’s ICWA finding that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that those efforts proved unsuccessful. While she acknowledges the agency made the requisite active efforts, she contends those efforts did not prove unsuccessful. In making her argument, she focuses on one of the court’s findings under state law (§ 366, subd. (a)(1)(D)) that she made substantial progress toward alleviating or mitigating the causes necessitating the children’s out-of-home placement. She begins, however, by arguing the requisite active efforts finding should be made by proof beyond a reasonable doubt. The trial court here did not state what standard of proof it applied in making its finding.

i. Burden of Proof

The “active efforts” provision in ICWA is silent regarding a specific burden of proof. At most, 25 United States Code section 1912 (d) requires that the party pursing either foster care placement or termination of parental rights “satisfy the court” of active efforts. By contrast, Congress mandated proof beyond a reasonable doubt for the damage or detriment finding required at the termination phase.

As appellant observes, there is a split of authority across the country regarding the appropriate burden of proof for the active efforts finding. Some sister state decisions assume, as a matter of public policy and logic, that because Congress set different burdens for the damage or detriment finding depending on whether the issue was foster care or termination, a beyond-a-reasonable-doubt standard should apply as well to the active efforts finding made to terminate parental rights. (See, e.g., In re G.S. (Montana, 2003) 59 P.3d 1063, 1071.) Other courts, including the Fourth District Court of Appeal in In re Michael G. (1998) 63 Cal.App.4th 700, 709-712, apply familiar rules of statutory construction to reject proof beyond a reasonable doubt as the applicable standard. As to what standard of proof should apply, the In re Michael G. court held it was clear and convincing evidence. (Id. at p. 712.) The appellate court reasoned because: (a) one of ICWA’s goals is to ensure the provision of reasonable reunification services before parental rights may be terminated and (b) California courts cannot proceed to a section 366.26 absent clear and convincing evidence that reasonable services have been provided or offered to the parent (§ 366.21, subd. (g)), the clear and convincing standard is consistent with ICWA’s goals. (In re Michael G., supra, 63 Cal.App.4th 712.)

Although appellant urges this court to join those sister state courts that endorse the beyond-a-reasonable-doubt standard, we are not persuaded. Instead, we agree with the approach taken by the court in In re Michael G., supra. First, 25 United States Code section 1912 (d) is silent regarding the standard of proof required. In addition, use of the word “satisfy” in the provision implies a lesser standard of proof than beyond a reasonable doubt. Further, given the insertion of standards of proof in other portions of ICWA, it appears Congress did not intend to set a federal standard of proof for the active-efforts finding. Finally, a clear-and-convincing-evidence standard is appropriate for the active-efforts finding given the similarity between it and a reasonable services finding under California dependency law and ICWA’s goals.

ii. Substantial Evidence

Appellant does not dispute active efforts, consistent with ICWA, were made in this case. Instead, she contends the court could not properly find those active efforts were unsuccessful, in light of her on-going efforts to treat her drug abuse and the court’s substantial progress finding. On review of the record, we disagree with appellant’s essential criticism of the court’s findings as inconsistent. However, because the issue is likely to arise in future cases, we also take this opportunity, for the benefit of the trial court and respondent, to voice our disapproval of the different approaches respondent suggests we take in evaluating the law and the appellate record.

It was respondent’s burden to satisfy the court that active efforts were made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful (25 U.S.C. § 1912(d)). Nevertheless, respondent did not specifically addressed the issue at the section 366.26 hearing. Its “366.26 WIC Report” and responses to the parents’ section 388 petitions were silent on the issue.

The “ICWA Affidavit,” however, did address the issue, albeit indirectly. Under the heading “Provision of Active Efforts,” the ICWA expert referred to evidence of active, but unsuccessful efforts made before the court removed the children in January 2005 from parental custody. While that evidence was presumably sufficient to support the court’s decision to place the children in foster care, such proof was irrelevant to whether there were subsequent active efforts which proved unsuccessful to support termination of parental rights. (25 U.S.C. § 1912 (d).)

Nonetheless, as previously quoted above, the ICWA expert reported appellant was at high risk for relapse. The expert cited “all of the new daily stressors” confronting appellant, i.e., no longer residing in a highly structured environment, being employed, having an infant to care for, and sobriety-related tasks. The expert also referred to appellant’s “unresolved anger issues and fragile sense of self as a clean and sober person” as placing her at an increased risk of relapse.

Appellant’s unresolved anger issues recalls the evidence developed in her dual diagnosis of the previous year, namely that she had a history of rage, physical aggression, emotional instability, low self-esteem, and conflicted interpersonal relationships. Also, there was evidence suggesting that her aggression and mood instability symptoms were pre-existing. Consequently, appellant’s case plan called for mental health therapy and a psychiatric evaluation as well as drug treatment. According to the record, appellant did not take advantage of the referrals the agency made for these services.

As the court found, appellant made substantial progress in alleviating her drug abuse. However, the services were not successful in the sense that she still had mental health issues which contributed to the children’s initial removal and her current high risk of relapse. Thus, we conclude there was substantial evidence to support the trial court’s finding that active efforts were unsuccessful in appellant’s case.

iii. Respondent’s Alternative Arguments

Moving on to respondent’s unpersuasive arguments, we note respondent counters by first arguing appellant too narrowly interprets the “these efforts have proved unsuccessful” phrase in section 1912(d) of ICWA. The agency urges the phrase looks to the ultimate success or failure of the active efforts in preventing the breakup of the Indian family, not just whether the parents overcome the causes necessitating the children’s removal. According to respondent, this is one of those cases, citing In re Joseph B. (1996) 42 Cal.App.4th 890, 901, in which it is appropriate for the court to find that return of the child to parental custody would be detrimental to the child despite the parent’s substantial progress in the reunification plan. Assuming this is what respondent means by “ultimate success,” we disagree.

Respondent mixes the proverbial apples with oranges. The “active efforts” finding required under ICWA does not relate to nor does it address whether return of custody is appropriate or detrimental. Instead, it addresses one part of the showing the agency must make before the court may terminate parental rights.

Ironically, it is respondent who too narrowly reads section 1912, subdivision (d) of ICWA. Quoting In re Michael G., supra, 63 Cal.App.4th at page 711, respondent urges “[a]fter all, ‘In promulgating subdivision (d) of section 1912, Congress sought solely to rectify the nonprovision of any services to Indian families.’” In so arguing, respondent ignores the ICWA language at issue here, that “[active efforts] have proved unsuccessful” in construing the statute. Respondent also takes the Michael G. language out of context. In part of its lengthy, standard-of-proof analysis, the Michael G. court made the remark respondent quotes, immediately followed by “There is no indication [the Congress] sought to impose a beyond a reasonable doubt standard of proof upon state courts.” (Id. at p. 711.) The appellate court in In re Michael G., supra, never addressed the precise issue posed here; indeed, the court found there was insufficient evidence that active efforts had even been made in the case before it. (In re Michael G., supra, 63 Cal.App.4th at pp. 713-716.)

Next, respondent urges there was sufficient evidence at the six-month review stage upon which the court could have found active efforts were unsuccessful. The agency cites findings the court made pursuant to California law (§ 366, subd. (a)(1)(B) & (D)) at the six-month stage, namely that it complied with the case plan in making reasonable efforts to return the children and the parents made minimal progress, as well as the fact that appellant did not challenge those findings by way of writ (§ 366.26, subd. (l); Cal. Rules of Ct., rules 38 & 38.1).

The fact of the matter, however, is that the court did not make an active efforts finding at that six-month stage. Respondent’s approach would ignore the more recent evidence which was before the court when it did make its active efforts finding, not to mention the effect of the court’s new finding of appellant’s substantial progress. (See In re Matthew Z. (2000) 80 Cal.App.4th 545, 555.)^[9]

In addition, respondent’s argument assumes there is no differentiation between status review hearing findings required under state law and an active efforts finding under ICWA. If nothing else, respondent ignores the requirement under ICWA that the court take into account “‘the prevailing social and cultural conditions and way of life of the Indian child's tribe. [Remedial services] shall also involve and use the available resources of the extended family, the tribe, Indian social service agencies and individual Indian care givers.’” (In re Michael G., supra, 63 Cal.App.4th at p. 714.)^[10]

With regard to the evidence appellant presented by way of her section 388 petition, respondent further urges that if the trial court lawfully denied the parents’ section 388 petitions, substantial evidence necessarily supported the court’s finding at the section 366.26 hearing that active efforts in this case proved unsuccessful. This argument too lacks merit. Appellant’s section 388 petition failed because she could not show additional services were in the children’s best interests at the section 366.26 stage given the children’s attachment to their foster parents and California’s focus on the children’s need for permanence and stability. However, appellant’s inability to satisfy her burden under state law is meaningless in evaluating whether respondent satisfied its burden under ICWA of proving that active efforts were unsuccessful.

B. Serious Emotional or Physical Damage Finding

Appellant also attacks the sufficiency of the evidence to support the trial court’s other required ICWA finding, namely that “the continued custody of the [children] by the parent or Indian custodian was likely to result in serious emotional or physical damage to the [children].” (25 U.S.C. § 1912 (f).) In large part, appellant assumes the only evidence the agency produced in this regard was evidence of the children’s attachment to their prospective adoptive parents. From this starting point, she argues evidence of bonding or attachment alone will not suffice. As discussed below, we disagree with appellant’s interpretation of the record.

To support the requisite damage finding, the agency offered the affidavit of its ICWA Expert. In that affidavit, as previously summarized, the ICWA Expert offered her opinion that the continued custody of the child by the parents was likely to result in serious emotional or physical damage to the children. The expert did devote a large part of her affidavit to describing the emotional attachment the children exhibited to their prospective adoptive parents and the lack of any clean signs of attachment to their birth parents. Notably absent, however, was any explanation by the ICWA Expert of how this attachment evidence translated into likely serious emotional or physical damage. Thus, the attachment evidence alone was insufficient to support the necessary ICWA finding.

However, the ICWA expert’s affidavit did not stop there. As previously quoted and discussed, the ICWA expert offered her opinion that appellant was in a fragile state of maintaining sobriety and was at a high risk for relapse. Thus, the court could properly conclude continued custody of the children by appellant was likely to result in serious emotional or physical damage to the children. Indeed, appellant acknowledged as much by requesting that the court reopen services. (In re Barbara R. (2006) 136 Cal.App.4th 941, 951-952.)

In her reply brief, appellant claims she “could not have done better with her rehabilitation plan” so that “[s]he had gotten her life together and was ready to assume the responsibility of having her other two children home with her.” The record, however, supports different conclusions. (In re Brison C. (2000) 81 Cal.App.4th 1373, 1378-1379 [our authority on review begins and ends with a determination as to whether or not there is any substantial evidence, whether or not contradicted, which will support the conclusion of the trier of fact].) First, while appellant made substantial progress with drug rehabilitation, she had yet to address her independent mental health problems which she was also required to do as part of her service plan. Second, according to the ICWA Expert’s affidavit as detailed above, appellant was not yet ready to assume her parenting responsibilities for her two older children as well as her third child without significantly risking relapse.

Appellant also characterizes the ICWA Expert’s opinion as conjecture. In so arguing, appellant appears to overlook ICWA’s requirement of expert opinion to support a conclusion that “the continued custody of the [children] by the parent or Indian custodian is likely to result in serious emotional or physical damage to the [children].” (25 U.S.C. § 1912(f), emphasis added.) Further, she ignores that portion of the substantial evidence rule which forecloses us, as a reviewing court, from reweighing or expressing an independent judgment on the evidence. (In re Laura F. (1983) 33 Cal.3d 826, 833.)

Having reviewed the record, we conclude there was substantial evidence to support the court’s finding under section 1912(f) of ICWA.

II. Section 388 Petition

Next, appellant contends the trial court should have granted her section 388 petition and either returned the children to her care or at a minimum re-opened reunification services and developed a plan to transition the children back to her care. Again, we disagree with appellant’s assessment of the law and the record.

Whether the juvenile court should modify a previously made order rests within its discretion and its determination may not be disturbed unless there has been a clear abuse of discretion. (In re Stephanie M. (1994) 7 Cal.4th 295, 318.) The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. (Ibid.)

Having reviewed the record as detailed above, we fail to see how appellant established that an order reopening reunification would be in the children’s best interests. To understand the element of best interests in the context of section 388 motion brought, as in this case, after the court terminated reunification efforts, we look to the Supreme Court’s decision in In re Stephanie M., supra, 7 Cal.4th at page 317.

“After the termination of reunification services, the parents’ interest in the care, custody and companionship of the child are no longer paramount.

“Rather, at this point ‘the focus shifts to the needs of the child for permanency and stability’ (In re Marilyn H. [1993] 5 Cal.4th 295, 309), and in fact, there is a rebuttable presumption that continued foster care is in the best interests of the child. (Id., at p. 302.) A court hearing a motion for change of placement at this stage of the proceedings must recognize this shift of focus in determining the ultimate question before it, that is, the best interests of the child.”

Simply put, appellant’s evidence did not establish that the children’s need for permanency and stability would be advanced by a new order for reunification services at this late stage of the proceedings. Consequently, we conclude the court did not abuse its discretion by denying appellant’s petition.

III. Visitation

Approximately two months before the section 366.26 hearing, the agency mistakenly permitted the prospective adoptive parents to take the children on a three-plus week holiday when the court had only authorized a ten-day vacation away from Tulare County. After the children’s return, the agency offered make-up visits to replace the parents’ missed opportunities to visit.

For the first time on appeal, appellant contends the agency’s mistake prejudiced the ICWA Expert’s subsequent evaluation of the children’s attachment to her and the father and, in turn, the outcome of this case. Because it was unnecessary to consider the ICWA Expert’s opinions regarding the children’s attachment or lack thereof in analyzing whether there was substantial evidence to support the trial court’s ICWA findings or whether the trial court abused its discretion by denying appellant’s section 388 petition, we conclude there is no merit to appellant’s claim of prejudice.

DISPOSITION

The order terminating parental rights is affirmed.

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^* Before Wiseman, Acting P.J., Cornell, J., and Kane, J.

^[1] All statutory references are to the Welfare and Institutions Code unless otherwise indicated.

^[2] Two months later, the Nation made its appearance in these proceedings, declaring, in part, that appellant and the children were direct descendents and enrolled members of the Nation.

^[3] The agency placed the children in the first of two foster homes, neither of which was a preferred placement under ICWA. (25 U.S.C. § 1915(b).) Although the court did not find good cause at the January 2005 hearing to deviate from ICWA placement preferences, the court did so soon after the Nation made its appearance.

^[4] Ordinarily, a juvenile court evaluates whether active efforts were made, as required by ICWA, by the time it sets a section 366.26 hearing. (See In re Michael G. (1998) 63 Cal.App.4th 700, 716.) Effective January 2007, section 366, subdivision (a)(1)(B) will require an active efforts determination at each status review hearing. (Stats. 2006, ch. 838, § 51.)

^[5] All of these had been requirements of the court’s case plan.

^[6] The record already contained evidence regarding appellant’s attendance at AA/NA meetings prior to the July 2005 six-month review hearing.

^[7] We note that effective January 2007, California law (§ 224.6, subd.(a)) will prohibit a qualified expert witness for ICWA purposes from being an employee of the agency recommending either foster care placement or termination of parental rights. (Stats. 2006, ch., 838, § 35.)

^[8] The same findings must be made before a court may order foster care placement of an Indian child although, at that stage, the damage or detriment determination shall be supported by clear and convincing evidence. (25 U.S.C. § 1912(d) & (e).)

^[9] Addressing the other substantive ICWA finding a court must make to terminate parental rights (25 U.S.C. § 1912(f)), the appellate court held if that finding was made at the final review hearing, the trial court need not readdress the issue at the section 366.26 hearing unless the parent presents evidence of changed circumstances or shows the finding was stale because the period between the referral hearing and the section 366.26 was substantially longer than the 120-day statutory period. On the other hand, if no finding was previously made and the plan is to terminate parental rights, the court must make the finding at the section 366.26 hearing. (In re Matthew Z., supra, 80 Cal.App.4th at p. 555.)

^[10] Effective January 2007, this approach will be codified into California law. A new section 361.7 will provide in pertinent part “[t]he active efforts shall be made in a manner that takes into account the prevailing social and cultural values, conditions, and way of life of the Indian child’s tribe. Active efforts shall utilize the available resources of the Indian child’s extended family, tribe, tribal and other Indian social service

agencies, and individual Indian caregiver service providers.” (Stats. 2006, ch. 838, § 50.)