Laura F., a Minor

In re LAURA F. et al., Persons Coming Under the Juvenile Court Law.
TULARE COUNTY DEPARTMENT OF PUBLIC SOCIAL SERVICES, Plaintiff and Respondent, v. BERNADETTE F., Defendant and Appellant.
No. F034368 (Super. Ct. No. 94-42853) California Court of Appeal Fifth Appellate District Filed August 31, 2000
CERTIFIED FOR PARTIAL PUBLICATION*
        APPEAL from a judgment of the Superior Court of Tulare County. Melinda M. Reed, Judge.
        Patricia Ihara, under appointment by the Court of Appeal, for Defendant and Appellant.
        Katheleen Bales-Lange, County Counsel, John A. Rozum, Chief Deputy County Counsel and Bryan Walters, Deputy, for Plaintiff and Respondent.
-ooOoo-         Bernadette F., appeals from the order terminating her parental rights (Welf & Inst. Code, § 366.26) to William C. and Laura F. ¹ Because the minors are Indian children, the court was required to comply not only with California's dependency law, but also the Indian Child Welfare Act (ICWA) (25 U.S.C. § 1901, et seq.) which establishes minimum federal standards, both procedural and substantive, governing the removal of Indian children from their families. (In re Alicia S. (1998) 65 Cal.App.4th 79, 81.) The mother has also filed a petition to invalidate the termination order under the federal act (see 25 U.S.C. § 1914).
        In the published portion of this opinion, we address the mother's contention that the trial court violated a full faith and credit provision contained in the ICWA (25 U.S.C. § 1911(d)) by not giving "absolute deference" to a tribal resolution voicing opposition to the adoption of its members who are dependent children, such as the minors herein. We hold the full faith and credit provision of the ICWA does not require a state court to apply a tribe's law in violation of the state's own legitimate policy nor does it empower a tribe to control the outcome of the state court proceedings. Having reviewed the record and relevant legal authorities, we will affirm the judgment and deny the petition for invalidation.

PROCEDURAL AND FACTUAL SUMMARY         The mother has an extensive history, dating back to 1988, of drug abuse and drug-related arrests and incarcerations. In 1994, the Tulare County Superior Court sitting as a juvenile court removed her three oldest children because her substance abuse rendered her unable to properly care for the minors. ²
        On May 8, 1995, as she failed to comply with her case plan for reunification with her other children, the mother gave birth to Laura. Both Laura and the mother tested positive for opiates. Hospital staff also observed that Laura suffered from symptoms of controlled substance absorption in utero and controlled substance withdrawal. When interviewed, the mother admitted ingesting heroin four days before Laura's birth.
        Consequently, the Tulare County Health and Human Services Agency (the Agency) initiated dependency proceedings on Laura's behalf based on the mother's failure or inability to provide due to her abuse of controlled substances (§ 300, subd. (b)). Because the mother was a member of the Tule River Indian Tribe (the Tribe), the Agency advised the juvenile court of the mother and Laura's Native American heritage and notified the Tribe of the proceedings. Parenthetically, the mother did not reside on the Tribe's reservation.
        In June 1995, the court, having previously determined Laura was a minor described under section 300, subdivisions (b) and (g), adjudged her a dependent child of the court. In addition, the court removed Laura from parental custody and adopted a recommended reunification plan that included substance abuse evaluation and recommended treatment, drug testing, and parenting classes. The court also authorized the department to investigate suitable placement for Laura that would include relatives or foster parents who were Tribe members.
        Commencing in January 1996, the Tribe began to informally participate in Laura's dependency proceedings (Cal. Rules of Court, rule 1412(i)(2)), through its representative, Louise Cornell. At that time, Cornell confirmed that the Tribe approved placement of Laura with her maternal great-aunt Brenda S. who was a member of the Tribe. Accordingly, the court authorized the relative placement.
        As was the case with her older children, the mother did not successfully complete her reunification program as to Laura. The mother failed to test as directed for drugs on numerous occasions and had tested positive for opiates on the two occasions she did test. She had not completed a requisite residential drug treatment program and by her admission had not attended narcotics' anonymous meetings as ordered by the court. She did not attend, let alone complete parenting classes.
        Additionally, she was arrested in mid-1996 for being under the influence of a controlled substance and thereafter failed to take advantage of a diversion program in lieu of at least a one-year sentence. As a result, there was an outstanding warrant for her arrest.
        In light of the mother's dismal performance, a social worker recommended that reunification services be terminated and a permanency planning hearing be set. At an August 1996 review hearing, the mother submitted the matter without argument. The court made the requisite findings to continue Laura's out-of-home placement, terminated services, and set the matter for a section 366.26 hearing.
        The Agency initially recommended adoption as a permanent plan for Laura based on her young age and good health. Her relative caregivers, who loved Laura and considered her part of their family, however, could not commit to adopting the child or becoming her legal guardian. The maternal great-aunt hoped Laura and her mother would reunite. Cornell, the Tribe's representative as well as its ICWA coordinator, also made it known that based on its customs and culture the Tribe was opposed to adoption as a general proposition for its members who were dependent children.
        By February 1997, the Agency had modified its recommendation. Accordingly, the court selected long-term foster care as the permanent plan for Laura. Long-term foster care remained the court's permanent plan for Laura through two semi-annual, post-permanency planning review hearings (§ 366.3). Notably, there was evidence that although there was a strong bond between Laura and her relative caregivers and the maternal great-aunt acknowledged reunification might never occur, a tribal representative dissuaded the relatives from pursuing adoption of Laura.
        Then, on April 13, 1998, the mother gave birth to William. Tragically, he was also born with opiates in his system. Thus, within days of the infant's birth, the Agency initiated dependency proceedings as to William based on his prenatal drug-exposure and his mother's abuse of his half-siblings (§ 300, subd. (b) and (j)). As in Laura's case, the mother did not live on the Tribe's reservation at the time of William's birth.
        The mother admitted she had a problem with illicit drug use. She used heroin during her pregnancy and within a couple of days of William's birth. She had failed to follow through with any drug treatment programs and expressed an unwillingness to comply with any recommendations or referrals.
        In June 1998, the court adjudged William a dependent child, placed the infant with his mother's cousin, Mrs. P., who was also a member of the Tribe and ordered reunification services for the mother's benefit pursuant to the ICWA. Cornell, again as representative for the Tribe, voiced a desire to be involved in the case plan for the mother. The court endorsed the idea.
        As in the past, the mother failed to comply with her reunification plan. She failed to submit to drug testing or complete any drug rehabilitation program. The mother told a social worker that completing such a program was just "too difficult" and that she just could not do it. She visited William only once in six months and never called to check on him. By November of 1998, the mother's precise whereabouts were unknown. One of the mother's relatives thought the mother was homeless.
        Due to the mother's lack of compliance with the case plan, the court in December 1998 continued William's out-of-home placement and terminated reunification services. During the same timeframe Laura's relative caregivers had decided to pursue her adoption. Accordingly, the court elected to set a section 366.26 hearing for both minors in April 1999.
        Reports prepared in anticipation of the section 366.26 hearing revealed the children had become very attached to their respective care providers who in turn wished to adopt them. The children's American Indian heritage could be maintained in each household given the families' ties to the Tribe. The Agency recommended that both children be freed by adoption by their respective relative caregivers.
        On the date originally set for the joint section 366.26 hearing, an attorney for the Tribe made a special appearance. While the Agency claims counsel's appearance amounted to the Tribe's intervention in the matter, there is no indication in the record that the Tribe ever formally moved to intervene. (See 25 U.S.C. § 1911(c); Cal.Rules of Court, rule 1412 (i)(1).) The Tribe, along with the mother, requested a contested hearing.
        Consequently, the matter was put over to a date in July 1999. At that hearing, a referee selected legal guardianship as the permanent plan for each minor. However, the Agency moved for rehearing (§ 252), which the court granted. In turn, the referee's orders were vacated and the court calendared a trial de novo on permanency planning for September 1999.
        At the September hearing, counsel for the Tribe once again made a special appearance. The court took judicial notice of its file as well as an April 1999 tribal resolution voicing opposition based on the Tribe's culture and customs to the adoption of dependent children such as the minors herein who are members of the Tribe. The Agency then called a single witness whom the court found qualified as an expert under the ICWA to render an opinion regarding whether Laura and William's continued custody by the mother was likely to result in serious emotional or physical damage to them (25 U.S.C. § 1912(f)).
        Based on her experience, training, review of the files of each child, and her interviews of the social workers assigned to their cases, the witness was "absolutely convinced" of such a risk of harm. The mother simply did not understand her drug addiction. Indeed, she had not even taken the first step towards recovery. That is, taking responsibility for her own use, let alone ever followed through with the treatment she needed. At this point, many treatment programs would not accept an in-patient client, such as the mother, who had already failed three or more treatment programs. The mother had not completed any of the five drug treatment programs in which she was previously enrolled.
        Because of the mother's drug addiction, her continued custody would result in the minors' neglect, a lack of bonding between parent and child, as well as a lack of food and shelter for the children. It was also of importance to the witness that Laura and William were at a significant stage of development.
        Other than to cross-examine the expert witness, neither the mother nor the Tribe introduced any evidence at the hearing. At the close of the hearing, the judge found: clear and convincing evidence established that it is likely both Laura and William would be adopted. The court went on to find, beyond a reasonable doubt, that continued custody by the mother was likely to result in serious emotional or physical damage to the minors. It then terminated the mother's parental rights in both children and ordered them placed for adoption.
        The mother filed a timely notice of appeal from the court's decision. She also filed a petition for invalidation of the judgment pursuant to the ICWA (25 U.S.C. § 1914).

DISCUSSION I FULL FAITH AND CREDIT
        Background
        Prior to the permanency planning hearing originally scheduled for April 1999, counsel for the Tribe wrote the court, asking it to take judicial notice of a tribal resolution. The heart of the resolution read:

"the Tule River Tribe, as a sovereign American Indian Nation with a government-to-government relationship with the United States, declares that its child-rearing practices and longstanding custom and tradition shall be recognized in all juvenile dependency proceedings involving a minor who is a Tule River Tribal member or eligible for membership in the Tribe as evidence that adoption of the child is not in the interest of the child." ³

As alluded to above, at the outset of the September permanency planning hearing, the court announced it would take judicial notice of the resolution over the objection of the Agency and minors' counsel.

        Argument
        On appeal, the mother contends the resolution was entitled to full faith and credit under the ICWA (25 U.S.C. § 1911(d)). This provision requires all jurisdictions within the United States to give full faith and credit to:

"the public acts, records, and judicial proceedings of any Indian tribe [that are] applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records, and judicial proceedings of any other entity." ⁴ (25 U.S.C. § 1911(d).)

According to the mother, the tribal resolution was a public act, record, and judicial decision entitled to "absolute deference" in the juvenile court. Because the resolution provided that adoption was not in the best interest of dependent minors who were members of or eligible for membership in the Tribe, the mother therefore argues the court could not properly free Laura and William for adoption. As explained below, we disagree.

        Analysis
        The mother fails to cite, and our research does not disclose, any case law analyzing 12 U.S.C. section 1911(d), much less the mother's insistence on "absolute deference." ⁵ However, case law interpreting our federal Constitution's Full Faith and Credit Clause settles the issue. By analogy, we conclude the juvenile court did not violate the full faith and credit provision in the ICWA.
        The constitutional Full Faith and Credit Clause requires each state to give effect to official acts of other states. (Nevada v. Hall (1979) 440 U.S. 410, 422.) However, "precedence differentiates the credit owed to laws (legislative measures and common law) and to judgments." (Baker By Thomas v. General Motors Corp. (1998) 522 U.S. 222, 232 [118 S.Ct. 657].) The obligation is "exacting" as to judgments. (Id. at p. 233.) A judgment entered in one state must be respected in another provided that the first state had jurisdiction over the parties and the subject matter. (Nevada v. Hall, supra, 440 U.S. 410, 422.) Indeed, the United States Supreme Court has held "credit must be given to the judgment of another state although the forum [state] would not be required to entertain the suit on which the judgment was founded." (Milwaukee County v. White Co. (1935) 296 U.S. 268, 277.) "For claim and issue preclusion (res judicata) purposes, in other words, the judgment of the rendering State gains nationwide force." (Baker By Thomas v. General Motors Corp., supra, 522 U.S. at p. 233, fn. omitted.) The same rule, however, does not necessarily apply to statutory law.
        "The Full Faith and Credit Clause does not compel 'a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.'" (Baker By Thomas v. General Motors Corp., supra, 522 U.S. at p. 232.) Indeed, as the Supreme Court in Nevada v. Hall, supra, observed the Full Faith and Credit Clause does not require a state to apply another state's statutory law in violation of its own legitimate public policy. (440 U.S. at p. 422; see also Pacific Ins. Co. v. Comm'n. (1938) 306 U.S. 493, 502-505.) With these principles in mind, we return to the case before us.
        The first question is obvious. Was the resolution a public act, record or judicial proceeding of the Tribe? The face of the resolution does not provide any definitive answer. In addition, neither the mother nor the Tribe introduced any evidence in the juvenile court to establish the nature of the tribal resolution for purposes of 25 United States Code, section 1911(d). At best, the record reveals argument below that the resolution was all three, that is, a public act, record and judicial proceeding of the Tribe. ⁶
        For the sake of the mother's argument, we will assume the resolution was either a public act or record of the Tribe, in other words a tribal statute. We will briefly explain however, before moving on, why we cannot find the resolution was a judgment or other enforceable order.
        To begin, the Tulare County Superior County sitting as a juvenile court and the Tribe had concurrent jurisdiction over child custody proceedings involving Laura and William inasmuch as these Indian children were neither domiciled nor residing within any reservation of the Tribe. (25 U.S.C., § 1911(b); Mississippi Choctaw Indian Band v. Holyfield (1988) 490 U.S. 30, 36.) That is to say, under the circumstances either the juvenile court or the Tribe could conduct such proceedings.
        Nevertheless, the record reveals the Tribe never exercised its jurisdiction over either child. As mentioned in our factual summary, almost immediately after the birth of first Laura and then William, the Agency initiated dependency proceedings to remove each child from the mother's custody. Notwithstanding the juvenile court's exercise of its dependency jurisdiction under section 300, the ICWA gave the Tribe the means by which to still exercise its jurisdiction over Laura and William. As the Court in Mississippi Choctaw Indian Band v. Holyfield , supra, 490 U.S. 30, explained title 25 United States Code, section 1911(b):

"on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of 'good cause,' objection by either parent, or declination of jurisdiction by the tribal court." (Mississippi Choctaw Indian Band v. Holyfield , supra, 490 U.S at p. 36.)

        If the matter is not transferred to a tribal court, the Tribe has the right to intervene in the state court proceedings at any time. (25 U.S.C. § 1911(c); In re Alicia S., supra, 65 Cal.App.4th at p. 83.)
        In this case, neither the Tribe nor the mother petitioned the juvenile court to transfer the matter to the Tribe's jurisdiction (25 U.S.C. 1911(b)); indeed, the Tribe never elected to actually intervene in the juvenile court proceedings (25 U.S.C. 1911(c)). Because there was never any effort to transfer dependency jurisdiction to the Tribe, we are hard pressed to imagine how the Tribe's resolution could have amounted to a judgment or other enforceable order. Thus, we have concluded the resolution was neither a judgment nor other order entitled to res judicata or collateral estoppel effect in the juvenile court under the ICWA's full faith and credit provision.
        Given our assumption that the resolution was a public act or record, the second question which we must ask is: did the ICWA's full faith and credit provision require the juvenile court to substitute the resolution for California's statutory preference for adoption? The answer is clearly no.
        As noted previously, the Full Faith and Credit Clause of our federal Constitution does not require a state to apply another state's law in violation of its own legitimate public policy. (Nevada v. Hall, supra, 440 U.S. at p. 422.) By analogy, we presume the same must be said of the ICWA's full faith and credit provision. In other words, we hold that the full faith and credit provision of the ICWA does not require a state court to apply a Tribe's law in violation of the state's own legitimate policy. If the Tribe wished to assert its own law in the matter of Laura and William, it could have done so by exercising its jurisdiction under the ICWA (25 U.S.C. § 1911(b)). The full faith and credit provision of the ICWA did not empower the Tribe to control the outcome of the proceedings here.
        California has a compelling state interest in providing stable permanent homes for children who have been removed from parental custody and for whom reunification efforts with their parents have been unsuccessful. (In re Marilyn H. (1993) 5 Cal.4th 295, 307.) In furtherance of its interest in stability and permanence for dependent children who cannot return to parental custody, California has declared a strong preference in section 366.26 for adoption as the most permanent, and thus the best, plan for a dependent child. (In re Jose V. (1996) 50 Cal.App.4th 1792, 1799.) Consequently, once a juvenile court determines in a particular case that adoption is feasible, the less desirable and less permanent alternatives of guardianship and long-term foster care need not be pursued. (Ibid.)
        Here, the tribal resolution against adoption runs counter to California's strong preference for adoption of such dependent children. Prefatory language in the tribal resolution indeed acknowledges:

"... the statutory preference contained in California law for adoption of minors who cannot be returned to a biological parent within certain specified timeframes is in direct conflict with the long-standing child-rearing practices of the Tule River Indian Tribe, Indian family organization of the Tribe and the customs and traditions of the Tule River Indian Tribe ...." (Emphasis added.)

        For the juvenile court to apply the tribal resolution, as the mother argues the court should have, would violate the state's own legitimate policy. Consequently, the ICWA's full faith and credit provision did not require the juvenile court to adhere to the tribal resolution.

[This Part Is Not Certified for Publication]
II* THE WEIGHT AFFORDED THE RESOLUTION         Alternatively, the mother asks us to reverse the order terminating her parental rights because the juvenile court failed to give "great weight" to the tribal resolution. The Tribe's cultural and social standards, she maintains, are entitled to recognition under the ICWA (25 U.S.C. § 1901(5)). ⁷ The mother concludes that where, as here, California and the Tribe collide on the issue of adoption, Indian culture must prevail. Once again, we disagree.
        It does not necessarily follow from the states' prior failure to recognize Indian cultural and social standards in Indian child custody proceedings that a Tribe's custom and practice against adoption now prevails over a state's public policy in favor of adoption. Certainly, the ICWA contains no such mandate. Instead, the ICWA directs a state court to apply a Tribe's prevailing social and cultural standards in meeting the preference requirements for foster care, preadoptive and adoptive placements. (25 U.S.C. § 1915.) ⁸ Inherent in this and other portions of the ICWA is the federal government's recognition that termination of parental rights and adoption may be appropriate, if not necessary in some Indian child custody proceedings. (See 25 U.S.C. §§ 1902, 1903(1)(ii) & (iii), & 1912(f).)
        In addition, the mother's arguments regarding the resolution and the weight to which it was entitled reveal a flawed reading of the resolution, not to mention a misunderstanding of this court's role as a reviewing court. Looking once again to the crucial language of the tribal resolution, we emphasize:

"the Tule River Tribe, as a sovereign American Indian Nation with a government-to-government relationship with the United States, declares that its child-rearing practices and long-standing custom and tradition shall be recognized in all juvenile dependency proceedings involving a minor who is a Tule River Tribal member or eligible for membership in the Tribe as evidence that adoption of the child is not in the interest of the child...." (Emphasis added.)

        As we read the Tribe's language, the resolution on its face requests that the juvenile court consider the Tribe's custom as evidence that adoption is not in the interests of a minor who is a member of or eligible for membership in the Tribe. This the court did when it agreed to take judicial notice of the resolution.
        The issue of weight to which evidence, such as the Tribe's custom and practice, is entitled is a matter exclusively for the trial court. As a reviewing court, we are without power to weigh or evaluate the evidence. (In re Carrie W. (1978) 78 Cal.App.3d 866, 872.) Instead, we only look to see if there is any substantial evidence to support the juvenile court's determination. (Ibid.)

III* QUALIFIED EXPERT WITNESS         The mother takes issue with the juvenile court's decision to qualify the Agency's witness at the September hearing as an expert under the ICWA. She contends expert testimony in Indian culture is necessary in every ICWA parental termination case. Alternatively, she claims the witness's qualifications were no greater than that of virtually any licensed social worker. ⁹ As discussed herein, we find no merit in either of the mother's contentions.

A.         The ICWA provides in relevant part:

"No termination of parental rights may be ordered in [a child custody proceeding involving an Indian child] in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result serious emotional or physical damage to the child." (25 U.S.C. § 1912 (f).)

        In order to determine the merits of the mother's initial argument, we apply well-established rules of statutory construction. As explained by our high court in People v. Jefferson (1999) 21 Cal.4th 86, 94:

"'The goal of statutory construction is to ascertain and effectuate the intent of the Legislature. (Hsu v. Abbara (1995) 9 Cal.4th 863, 871.) Ordinarily, the words of the statute provide the most reliable indication of legislative intent. (Ibid.) When the statutory language is ambiguous, the court may examine the context in which the language appears, adopting the construction that best harmonizes the statute internally and with related statutes. (Ibid.; Woods v. Young (1991) 53 Cal.3d 315, 323.)' (Pacific Gas & Electric Co. v. County of Stanislaus (1997) 16 Cal.4th 1143, 1152.) '"When the language is susceptible of more than one reasonable interpretation ..., we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part."' (Granberry v. Islay Investments (1995) 9 Cal.4th 738, 744.)"

        The phrase "qualified expert witnesses" as used in Title 25 U.S.C. 1912(f) is not defined in the ICWA. A House Report prepared in conjunction with the ICWA states that the phrase "'qualified expert witnesses' is meant to apply to expertise beyond the normal social worker qualifications." (House Report for the Indian Child Welfare Act, H.R. 1386, 95th Cong., 2d Sess. (1978).)
        The Guidelines for State Courts in Indian Child Custody Proceedings promulgated by the Bureau of Indian Affairs of the Department of the Interior also shed some light on the subject. (44 Fed. Reg. 67584-67593 (Nov. 26, 1979) (Guidelines).) As noted in In re Krystal D. (1994) 30 Cal.App.4th 1778, 1801, fn. 7:

        "'The Guidelines represent the Department of the Interior's interpretation of certain provisions of the [ICWA]; they were not intended to have binding legislative effect. [Citation.] However, the construction of a statute by the executive department charged with its administration is entitled to great weight.'"

        In discussing the standard of proof applicable to an order terminating parental rights in an Indian child, the Guidelines explain that this type of order cannot be entered unless supported by evidence beyond a reasonable doubt, including the testimony of one or more qualified expert witnesses, that continued custody of the child is likely to result in serious emotional or physical damage to the child. (Id. at pp. 67592, 67593.) The standards that must be met to qualify as an ICWA expert are set out in section D.4 of the Guidelines. As pertinent, this section states:

        "D.4 Qualified Expert Witnesses

"(a) Removal of an Indian child from his or her family must be based on competent testimony from one or more experts qualified to speak specifically to the issue of whether continued custody by the parents or Indian custodians is likely to result in serious physical or emotional damage to the child."

        "(b) Persons with the following characteristics are most likely to meet the requirements for a qualified expert witness for purposes of Indian child custody proceedings:

        "(i) A member of the Indian child's tribe who is recognized by the trial community as knowledgeable in tribal customs as they pertain to family organization and childrearing practices;

        "(ii) A lay expert witness having substantial experience in the delivery of child and family services to Indians, and extensive knowledge of prevailing social and cultural standards and childrearing practices within the Indian child's tribe.

        "(iii) A professional person having substantial education and experience in the area of his or her specialty.

"(c) The court or any party may request the assistance of the Indian child's tribe or the Bureau of Indian Affairs agency serving the Indian child's tribe in locating persons qualified to serve as expert witnesses." (Id. at p. 67593.)

        As relevant, the Commentary that follows this subdivision explains:

        "The first subsection is intended to point out that the issue on which qualified expert testimony is required is the question of whether or not serious damage to the child is likely to occur if the child is not removed. Basically two questions are involved. First, is it likely that the conduct of the parents will result in serious physical or emotional harm to the child? Second, if such conduct will likely cause such harm, can the parents be persuaded to modify their conduct?

        "The party presenting an expert witness must demonstrate that the witness is qualified by reason of educational background and prior experience to make judgments on those questions that are substantially more reliable than judgments would be made by nonexperts.

        "The second subsection makes clear that knowledge of tribal culture and childrearing practices will frequently be very valuable to the court. Determining the likelihood of future harm frequently involves predicting future behavior

which is influenced to a large degree by culture. Specific behavior patterns will often need to be placed in the context of the total culture to determine whether they are likely to cause serious emotional harm."
        The ICWA's legislative history shows it was enacted because Congress believed the states had largely ignored Indian culture in making their child custody determinations. Congress could have alleviated this problem, in part, by requiring expert testimony by one familiar with Indian culture in all termination cases under the ICWA. It did not do so.
        We believe Congress's choice of statutory language reflects an acknowledgement that in some cases Indian culture simply does not play a role in determining whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. When this occurs, expert testimony on tribal culture is not needed to satisfy the ICWA. The Guidelines and rules bear this out.
        We note the only California court to have faced the issue thus far, In re Krystle D., supra, 30 Cal.App.4th at pages 1801-1802, flatly rejected the mother's interpretation. Sister state decisions which have likewise concluded the ICWA can be satisfied without testimony by a tribal expert given an appropriate case include: In re Interest of C.W. (Neb. 1992) 479 N.W.2d 105, 111-112, 239 Neb. 817, 824-825 [order upheld when a clinical psychologist was the only expert to testify]; Matter of N.L. (1988) 754 P.2d 863, 867 [when cultural bias is clearly not implicated, the necessary proof may be provided by expert witnesses who do not possess special knowledge of Indian life]; Matter of Kreft (Mich.App. 1986) 384 N.W.2d 843, 848, 148 Mich.App. 682, 692 [same]; and In the Matter of D.C. (Alaska (1986) 715 P.2d 1, fn. 1 [order upheld even though an expert in sexual abuse of children was the only expert to testify].
        We acknowledge that the Montana Supreme Court came to the opposite conclusion in In re K.H. (Mont. 1999) 981 P.2d 1190. There, the court opined that subparts (b)(i) and (ii) of section D.4 of the Guidelines help define who can qualify as an expert under subpart (b)(iii) of that same section. (In re K.H., supra, 981 P.2d at p. 1196.) It reasoned that courts should look beyond the plain language of subpart (iii) and require experts to have:

"more than simply substantial education and experience in the area of their specialty. Rather, they should have expertise in, and substantial knowledge of, Native American families and their childrearing practices. See e.g., In the Matter of the Welfare of M.S.S. (Minn. App. 1991), 465 N.W.2d 412, 417 ('The experts should also be conversant with Indian culture and child-rearing practices, lest "the problems Congress has tried to remedy may remain despite the adoption of the [ICWA]."') (citation omitted); State ex rel. Juv. Dep't v. Charles (1984) 70 Or.App. 10, 688 P.2d 1354, 1359-1360 n. 3 ('[A]n expert witness within the meaning of [ICWA] must possess special knowledge of social and cultural aspects of Indian life.')." (In re K.H., supra, 981 P.2d at p. 1196, italics original.)

As further support for its position, the Montana court quoted the Commentary to the Guidelines that stated knowledge of tribal culture and childrearing practices will "'frequently be very valuable to the court.'" (44 Fed.Reg. at p. 67593.)
        With all due respect to our judicial colleagues in Montana, we find their analysis flawed. First, the opinion ignores the plain language of 25 U.S.C. section 1912 and of Guidelines section D.4, subpart (b)(iii) neither of which includes a requirement that every expert qualifying thereunder have expertise in, and substantial knowledge of, Indian families and their childrearing practices. As pointed out earlier, these provisions could have been written to impose such a requirement had that been what Congress intended.
        The mother also points to California Rules of Court, rule 1439(a)(10) which describes those persons most likely to be considered a qualified expert witness, as further evidence the witness in this case was not properly qualified to render a decision regarding the harm that would result should the mother continue to have custody of the minors.
        The rule of court addresses the qualifications of expert witnesses in ICWA cases in terms very similar to the Guidelines:

        "'Qualified expert witness' means a person qualified to address the issue of whether continued custody by a parent or Indian custodian is likely to result in serious physical or emotional damage to the child. Persons most likely to be considered such an expert are:

        "(A) a member of a tribe with knowledge of Indian family organization and child rearing; or

        "(B) a lay expert with substantial experience in Indian child and family services and extensive knowledge of the social and cultural standards and child-rearing practices of Indian tribes, specifically the child's tribe, if possible; or

        "(C) a professional person with substantial education and experience in Indian child and family services and in the social and cultural standards of Indian tribes, specifically in the child's tribe, if possible; or

        "(D) a professional person having substantial education and experience in the area of his or her specialty." (Cal. Rules of Court, rule 1439(a)(10).)

        We find no merit in the mother's interpretation of the phrase "if possible" found in rule 1439, subsection (a)(10)(B) and (C) as allowing the use of an expert qualified under subsection (a)(10)(D) only when no tribal expert can be found. This argument fails because it does not take into account the manner in which the rule was written. First, the rule does not purport to be an exclusive list of the types of persons who can qualify as experts under the act. Second, the use of the word "or" between each type of expert listed shows they are alternative methods of qualifying an expert. Third, the rule does not establish an order of preference between types of experts. Fourth, the phrase "if possible" clearly modifies the clause "specifically the child's tribe." As such, it indicates a preference among Indian experts for one knowledgeable about the child's tribe if an Indian expert is to be qualified under rule 1439(a)(10)(B) or (C).

B.         Having determined that a witness can qualify as an expert under the act without specialized knowledge of Indian culture as it pertains to family organization and child-rearing practices, we turn to the mother's next claim. As previously noted, she contends the trial court erred when it declared Joan Bryant an expert under the ICWA because her qualifications were no greater than that of virtually any licensed social worker. Based on our review of the record before us, we conclude that the witness was properly qualified under the ICWA as an expert on substance abuse.
        Bryant was anything but a typical social worker. She had earned a bachelor's degree in sociology, the equivalent of a degree in social welfare, and a master's degree in social work. Some of her coursework addressed substance abuse issues. Bryant had also received training while in the Navy concerning substance abuse and the risk of emotional and/or physical damage it had on children. In her 18 years as a social worker, she had worked her way up to team leader with Child Protective Services. She was in charge of in-patient drug and alcohol while serving as acting director of the crisis department for Kings County. Bryant was also a state-licensed clinical social worker (LCSW), required to take continuing education courses, some of which addressed drug- and alcohol-related topics.
        She had a very large clientele who were substance abusers and, in her capacity as a social worker, had personally seen the direct emotional problems their children suffered (issues related to abandonment, neglect, relationship, and the child's own abuse of substances). She had also witnessed the physical problems of children such as exposure to dangers in their environment (electrical wires, drug paraphernalia, sharp knives) and having to go without food or shelter. She has also seen drug-abusing parents display little or no interest in bonding to their children. She went so far as to say that drug and alcohol use is one of the most important aspects of her career as a LCSW - one which she must understand in order to help her clients with their other problems.
        The question that remains is whether the testimony of this one expert was all that was needed to satisfy the ICWA an issue we address in the next section of this opinion.

IV* CULTURAL BIAS WAS NOT IMPLICATED IN THIS CASE         As previously discussed, we reject the mother's claim expert testimony in Indian culture is necessary in every ICWA parental termination case. Instead, in some cases Indian culture simply does not play a role in determining whether continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child. In this case, the juvenile court made such a finding:

        "And I am mindful of the expert's testimony. I am mindful of the fact that generally the expert witness must possess some type of special knowledge as to the social and cultural aspects of Indian life; however, I do find that in this particular case cultural bias is clearly not implicated.

        "The only evidence that stands before the Court is that the mother is unfit based on her continued drug usage and lack of reunification because of that usage with the children."

        The mother takes issue with the juvenile court's finding that cultural bias was not implicated in this case and its reliance on this finding when it terminated her parental rights to the subject children. In advancing this claim, the mother essentially tries to characterize her substance abuse problem as one involving cultural issues. She does so by citing testimony, outside the appellate record, taken at certain legislative hearings pertaining to Indian affairs, including those that led to the enactment of the ICWA, that address the higher incidence of substance abuse in Indian cultures and how the Indian culture differs in its use of alcohol.
        We initially question the mother's right to raise this issue since she did not do so below. We need not rest our decision on this failure, however, because there is an additional basis upon which to deny her claim.
        It must be remembered that the issue before the court under the ICWA (25 U.S.C. § 1912 (f)) is whether the mother's continued custody of Laura and William is likely to result in serious emotional or physical damage to them. This occurrence must be affirmatively shown beyond a reasonable doubt, including the testimony of qualified experts, before the trial court can order the termination of a parent's rights to her Indian children.
        Here, there is no evidence to show that the risk of harm these minors faced as a result of their mother's substance abuse problem has any cultural implications. This is not a case that involves a difference of opinion between Anglo and Indian cultures regarding parenting.
        It instead concerns the effects a parent's drug abuse has on very young children. The mother's inability or unwillingness to take steps to prevent her children from suffering harm as a direct result of her drug abuse has been well documented. It began when both children were born drug-exposed and continued with a lack of parent-child bonding. Those harms are real and serious regardless of the parent's descent.
        The only expert testimony presented showed that the mother: had a serious substance abuse problem dating back to 1988; was in denial with respect to her addiction; had already had three older children removed from her care due to her substance abuse problems by the time Laura was born; failed to complete a number of substance abuse treatment programs and due to those failures had limited her opportunities for treatment and counseling in the future; had very little visitation with the subject minors so that it could be inferred she had little or no interest in bonding between them. Bryant specifically testified that the mother's addiction type knew no cultural bounds. She also said the resulting injuries to the children were equally universal in nature and included such things as the minors' neglect, a lack of bonding between parent and child, and a lack of food and shelter for the children.
        Because there was no likelihood that the mother would address her substance abuse problem in the future, the court could reasonably assume the potential for harm to the children would continue to exist.
        Given this state of the record, the mother had the burden of going forward with evidence that would dispute the social worker's claim that the mother's substance abuse problem did not have any cultural implications relative to the precise issue facing the court under the ICWA (25 U.S.C. § 1912 (f)). (See Evid. Code, § 550, subd. (a).) ¹⁰ Since she did not present any such evidence, there was nothing before the court to suggest Indian culture was implicated in this matter. The result being the trial court did not err in failing to hear from one well-versed in pertinent Indian culture before terminating the mother's parental rights in the subject children.

V*
THE MEANING OF "CUSTODY" UNDER THE ICWA         In her final argument, the mother asserts that the juvenile court based its decision on the faulty premise that "custody" as the term is used in the ICWA (25 U.S.C. § 1912 (f)) is limited to physical custody. She believes the term should encompass both legal and physical custody as the court found in In re Crystal K., supra, 226 Cal.App.3d at p. 667. In her view, the juvenile court's order terminating her parental rights must be reversed because no evidence was presented to address the option of her maintaining legal custody while extended family members had physical custody of the minors.
        The Agency, citing Code of Civil Procedure, sections 3515 and 3516, People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267, In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1139, and 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, section 390, insists this issue was waived by the mother's failure to raise it below.
        The mother claims her counsel raised the issue in cross-examining Bryant as to whether any harm would come to the children if they were continued in a legal guardianship rather than being placed for adoption. She contends counsel revisited the question during closing arguments when she argued in favor of guardianship and the tribe pointed out that the Agency had not shown that harm would befall these minors.
        Once again, we question whether the mother can raise this issue for the first time on appeal. Her claim can, however, be easily disposed of on the merits.
        For the sake of this analysis we have assumed, without deciding, that section 1912 (f) of the ICWA references both physical and legal custody of the children that fall within its provisions. We nevertheless reject the mother's argument, in part, because the mother would not have legal custody of the children should legal guardianship be selected as the permanent plan in this case, as she had urged the court to do. Legal guardianship encompasses both legal and physical custody.
        Her argument also fails because there is nothing in the record to show the court did not consider both physical and legal custody when making its determination required under the ICWA. The comments of the court she references in advancing this claim simply show the court deemed her unfit as a parent based on her substance abuse problems. In the absence of evidence to the contrary, the court is presumed to have performed its official duties correctly. (Evid. Code, § 664; People v. Diaz (1992) 3 Cal.4th 495, 567; People v. Visciotti (1992) 2 Cal.4th 1, 49.)
        That leaves us with her argument that the record is completely lacking in evidence to show she is unfit to have legal custody of these children. She overlooks the fact that the evidence related to her substance abuse problem shows she is unfit to have physical or legal custody of the minors.

[End of Part Not Certified for Publication] DISPOSITION         The judgment terminating parental rights is affirmed. The petition to invalidate the termination order is denied.
                
We concur:
        WISEMAN, J.
        MORAN, Pro Tem J.*


*         Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of parts II through V of the Discussion.
¹         All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
²         These children were eventually placed in long-term foster care because the older two were difficult to place and the court found it appropriate to keep all three children together.
³         The full text of the resolution, which was attached as an exhibit to counsel's letter, provided:
"BE IT RESOLVED BY THE COUNCIL OF THE TULE RIVER INDIAN TRIBE:
"WHEREAS, the Tule River Tribe is governed under a Constitution and Bylaws duly adopted and approved by the Secretary of the Interior on January 15, 1936; and
"WHEREAS, Article VI, Section 1 (a) of the Tribal Constitution authorizes the governing body to enter into negotiations with federal, state or local agencies on behalf of the Tribe; and
"WHEREAS, the Tule River Indian Tribe is a Tribe as defined in the Indian Child Welfare Act of 1978, Section 4, Paragraph (8), as well as under California Rule of Court 1439(a)(6), and is the Tribe of the minor children involved in Case No. J-42853 in Tulare County Superior Court sitting as Juvenile Court; and [Fn. contd.]
"WHEREAS, the customs and traditions of the Tule River Indian Tribe with regard to Indian family organization and child-rearing practices are either being misunderstood or ignored as long-standing customs and traditions of the Tule River Indian Tribe by Child Welfare Services; and
"WHEREAS, the statutory preference contained in California law for adoption of minors who cannot be returned to a biological parent within certain specified timeframes is in direct conflict with the long-standing child-rearing practices of the Tule River Indian Tribe, Indian family organization of the Tribe and the customs and traditions of the Tule River Indian Tribe; and
"WHEREAS, the long-standing customs and traditions of the Tule River Indian Tribe, a sovereign American Indian Nation, as well as the Tribe's child-rearing practices should not be treated as subordinate and inferior to the statutory preference contained in California Law; and
"WHEREAS, that the Tule River Indian Tribe hereby officially declares its long-standing child-rearing practice and Indian family organization by stating that the adoption of minors who are members of the Tribe or eligible for membership in the Tribe is contrary to the Tribe's custom and tradition and is not in said minors best interests; and
"NOW THEREFORE BE IT RESOLVED that the Tule River Tribe, as a sovereign American Indian Nation with a government-to-government relationship with the United States, declares that its child-rearing practices and longstanding custom and tradition shall be recognized in all juvenile dependency proceedings involving a minor who is a Tule River Tribal member or eligible for membership in the Tribe as evidence that adoption of the child is not in the interest of the child; and
"BE IT FURTHER RESOLVED that this resolution shall remain in effect until it is officially amended or rescinded, and that to do [sic] it has not been amended or rescinded in any way.
"CERTIFICATION
"UPON MOTION OF COUNCIL MEMBER Alec Garfield, SECONDED BY COUNCIL MEMBER Heather Teran, THE FOREGOING WAS ADOPTED BY THE TULE RIVER TRIBAL COUNCIL AT A DULY CALLED MEETING HELD ON Tuesday, April 6, 1999, AT WHICH A QUORUM WAS PRESENT BY THE FOLLOWING VOTES:
"AYES: 6
"NOES: 0"
"ABSTAIN: 0"

The resolution appeared to be signed by Mr. Hunter, the Chairman of the Tule River Tribal Council and Ms. Santos, Secretary of the Tule River Tribal Council. It was purportedly attested to by Ms. Perez, the Recording Secretary.
⁴         We note that the "public acts, records and judicial proceedings" language in the ICWA Full Faith and Credit statute is identical to that found in Article IV, section 1 of the United States Constitution. We also observe that the language of this ICWA statute is very similar to that of the general federal Full Faith and Credit Clause statute. (Compare 25 U.S.C. § 1911(d) with 28 U.S.C. 1738.)
⁵         The mother does cite numerous authorities which, we have read and considered. At most, the case law to which the mother refers may quote the ICWA's full faith and credit clause. None of her authorities explain the clause's application in a dependency matter.
⁶         Following oral argument and submission of the matter in this court, the mother asked this court to take judicial notice of the Tribe's constitution and by-laws in an effort to resolve the matter. She notably failed to offer any explanation for her failure to seek judicial notice of these documents in the trial court. We will deny the request for judicial notice.
*        See footnote, ante.
⁷         This section states: "that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families."
⁸         This section provides:
        "Placement of Indian children. [¶] (a) Adoptive placements; preferences. [¶] In any adoptive placement of an Indian child under State law, a 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.
        "(b) Foster care or preadoptive placements; criteria; preferences. [¶] Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with -
        "(i) a member of the Indian child's extended family
        "(ii) a foster home licensed, approved, or specified by the Indian child's tribe;
        "(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
        (iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.
        "(c) Tribal resolution for different order of preference; personal preference considered; anonymity in application of preferences
        In the case of a placement under subsection (a) or (b) of this section, if the Indian child's tribe shall establish a different order of preference by resolution, the agency or court effecting the placement shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child, as provided in subsection (b) of this section. Where appropriate, the preference of the Indian child or parent shall be considered: Provided, That where a consenting parent evidences a desire for anonymity, the court or agency shall give weight to such desire in applying the preferences.
        "(d) social and cultural standards applicable [¶] The standards to be applied in meeting the preference requirements of this section shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent or extended family members maintain social and cultural ties.
        "(e) Record of placement; availability [¶] A record of each such placement, under State law, of an Indian child shall be maintained by the State in which the placement was made, evidencing the efforts to comply with the order of preference specified in this section. Such record shall be made available at any time upon the request of the Secretary or the Indian child's tribe." (Ibid.)
*        See footnote, ante.
⁹         The mother also argues that the introduction of the resolution raised cultural considerations thus creating a need for testimony from someone versed in Indian culture. She believes this cultural evidence had to be presented by anyone desiring to refute or rebut the contents of the resolution. This argument was raised for the first time in her reply brief thereby depriving respondent of the opportunity to respond to it. Accordingly, we need not, and do not, address it. (Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 295, fn. 11; Stoll v. Shuff (1994) 22 Cal.App.4th 22, 25, fn. 1; see generally 9 Witkin, Cal. Procedure (4d ed. 1996-97) Appeal, § 496, pp. 484-485.)
*        See footnote, ante.
¹⁰         This section provides: "(a) The burden of producing evidence as to a particular fact is initially on the party against whom a finding on that fact would be required in the absence of further evidence.
        "(b) The burden of producing evidence as to a particular fact is initially on the party with the burden of proof as to that fact."
*        See footnote, ante.
*        Judge of the Tulare County Superior court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.