Alexandria Y., In re

• Decision Date: 31 May 1996
• Docket Number: No. G018179,G018179
• Citation: 53 Cal.Rptr.2d 679,45 Cal.App.4th 1483
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3936, 96 Daily Journal D.A.R. 6372 In re ALEXANDRIA Y., A Person Coming Under the Juvenile Court Law. ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. RENEA Y., Defendant; Seminole Nation of Oklahoma, Intervener and Appellant.

Page 679

53 Cal.Rptr.2d 679

45 Cal.App.4th 1483, 96 Cal. Daily Op. Serv. 3936,

96 Daily Journal D.A.R. 6372

In re ALEXANDRIA Y., A Person Coming Under the Juvenile Court Law.

ORANGE COUNTY SOCIAL SERVICES AGENCY, Plaintiff and Respondent, v. RENEA Y., Defendant;

Seminole Nation of Oklahoma, Intervener and Appellant.

No. G018179.

Court of Appeal, Fourth District, Division 3, California.

May 31, 1996.

Review Denied Sept. 18, 1996.

[45 Cal.App.4th 1484] Laurence M. Watson, Chief Assistant County Counsel, and Michelle Ben-Hur, Santa Ana, Deputy County Counsel, for Plaintiff and Respondent.

Sylvia L. Paoli, under appointment by the Court of Appeal, Tustin, for Intervener and Appellant.

John L. Dodd, Tustin, and Harold La Flamme, Santa Ana, under appointment by the Court of Appeal, for the Minor.

OPINION

WALLIN, Associate Justice.

The Seminole Nation of Oklahoma (the SNO) appeals from the judgment terminating the parental rights of Renea Y., an enrolled tribal member, to her daughter, Alexandria. The SNO contends the trial court violated the Indian Child Welfare Act (hereinafter "ICWA" or "Act") by failing to transfer jurisdiction of the proceedings to the SNO and failing to follow the ICWA placement preferences. We find the trial court properly refused to apply the provisions of the ICWA because neither Alexandria nor Renea had any significant social, cultural or political relationship with Indian life; thus, there was no existing Indian family to preserve.

Facts

Alexandria Y. was born in December 1990 with cocaine in her system. She was immediately taken into custody by the Orange County Social Services Agency (SSA) and was placed in an emergency shelter home. She was declared a dependent of the juvenile court under Welfare and Institutions Code section 300, subdivisions (a) and (b) in February 1991. In August, when Alexandria was seven months old, she was moved to the home of the T.'s, an Hispanic family, ¹ where she has lived ever since. In September, the six-month review hearing was held. SSA had been unable to locate either parent and neither of them had contacted or visited Alexandria. The trial court terminated reunification services and set a selection and implementation hearing for December 1991.

In October, SSA discovered that Renea was an enrolled member of the SNO, making Alexandria eligible for enrollment and potentially subject to the ICWA. It was determined that Renea is one-eighth Seminole Indian; she was adopted as a toddler by a non-Indian family. The selection and implementation hearing was continued several times to accommodate the notice requirements of the ICWA, and the SNO indicated its intent to intervene in the proceedings by letter dated February 11, 1992. It expressly stated it did "not wish to transfer these state court proceedings to tribal court," but requested that the trial court follow the placement preferences of the ICWA. The SNO (and, for the first time, Renea) appeared on March 31. The SNO again requested the placement preferences be followed, and in May counsel was appointed to represent it. In June, the trial court held a hearing to determine whether Alexandria was an Indian child as defined by the ICWA. ² After several days of testimony, the trial court concluded that she was, but found the ICWA inapplicable because the SNO's criteria for membership was not based on a quantum of blood analysis and was, therefore, unreasonable. ³

The SNO filed for writ relief in this court, arguing that once a minor is determined to be an "Indian child" as defined by the ICWA, the juvenile court has no jurisdiction to consider the reasonableness of such determination. This court agreed, and issued a peremptory writ of mandate directing the trial court to recognize "SNO's determination that Alexandria is an Indian child and therefore entitled to placement preference under section 1915, subdivision (b) [fn. omitted]." (Seminole Nation of Oklahoma v. Superior Court (July 31, 1992) G012836.) ⁴

When proceedings resumed, the mother filed a petition to transfer Alexandria's case to the tribal court. (25 U.S.C. § 1911, subd. (b).) The trial court set a hearing on the issue of whether good cause existed to deny the transfer petition, followed by the trailing selection and implementation hearing, for September 21. The trial court notified the SNO of the transfer petition by letter, stating, "Please be advised that the mother of [Alexandria] ... has ... filed a PETITION FOR TRANSFER OF CASE TO TRIBAL COURT.... [p] Pursuant to the Indian Child Custody Guidelines, C. 4. (b), you have twenty days from the receipt of this notice of proposed transfer to decide whether to decline the transfer. [p] You may inform this court, per the Guidelines, of your decision orally, or in writing." SNO petitioned the tribal court to accept jurisdiction, and Chief Magistrate Tah-Bone, thinking the trial court had already transferred jurisdiction, issued an order accepting jurisdiction on September 8.

On September 21, the SNO orally joined in Renea's petition to transfer, and Renea orally joined in the SNO's motion to enforce the ICWA placement preferences. The hearing on the transfer motion commenced and continued for several days over a three-month period. Dr. Roberto Flores de Apodaca, a clinical child psychologist, testified he had performed a bonding study on Alexandria and her foster parents when Alexandria was about 15 months old. He observed that a "secure bonding or attachment had taken place" between them, providing Alexandria with a sense of security which was critical to her optimum development. Removing her from her placement with the T. family would probably cause her to "suffer negative emotional consequences" manifested by "emotional withdrawal ..., indiscriminate friendliness or provocative behavior...." Dr. Apodaca performed a supplemental bonding study in November, and testified there was still a strong bond between Alexandria and her foster parents. He opined she was even more vulnerable to emotional damage from a separation than he had initially thought, and it was likely she would suffer detrimental effects if she were to be removed from the T. family.

Dr. Dixie Noble, a Native American psychologist, testified that she believed, based on reading studies performed by others, "Native American children who grow up in non-Indian homes have greater difficulties later on when the issue of identity becomes important in adolescence." After hearing the testimony and argument, the trial court denied the petition for transfer, finding the petition was untimely and that transfer would result in an inconvenient forum for the hearing on termination of parental rights and would be contrary to the best interests of the child.

The selection and implementation hearing concluded in March 1993. The trial court selected adoption as Alexandria's permanent plan and terminated Renea's parental rights. The trial court then found there was good cause, beyond a reasonable doubt, not to enforce the ICWA placement preferences. Its determination was based on the record of all proceedings in the case since December 1991, specifically including the prior testimony of Drs. Apodaca and Noble. Both Renea and the SNO appealed.

In January 1994, this court filed an unpublished opinion reversing the judgment terminating Renea's parental rights. We found it was error to terminate reunification services and schedule the selection and implementation hearing after the six-month review hearing when jurisdiction over Alexandria had not been based on abandonment. (Welf. & Inst.Code, § 300, subd. (g), § 366.21, subd. (e).) We remanded the case for a new six-month hearing and noted: "Our disposition of this issue eliminates the need to address several of the other issues raised by Renea and the Seminole Nation of Oklahoma." (In re Alexandria Y. (January 31, 1994) G013944.) Both SSA and Alexandria filed petitions for rehearing, urging us to address the ICWA issues because they would be relevant on remand. Both petitions were denied. A petition for review in the Supreme Court was also denied. The remittitur issued on May 9, 1994. ⁵

After several continuances to accommodate the reappointment of counsel, the adoption of a reunification plan for Renea, and notice requirements, a new 12-month hearing was held in February 1995. Shortly before the hearing, Renea filed a petition for transfer of jurisdiction to the tribal court. At the hearing, the SNO expressly declined to join in the petition. The trial court denied the petition, erroneously finding the October 1992 order denying transfer was res judicata and thus could not be reconsidered; it also reaffirmed the previous bases for denial, finding the petition was untimely, and that transfer would result in an inconvenient forum and be contrary to Alexandria's best interests. The trial court then addressed the 12-month review issues. The social worker reported she had received a letter from Renea expressing her desire to relinquish her parental rights to Alexandria and to have the child adopted by her present caretakers. The trial court terminated reunification services and set a selection and implementation hearing for June 1995.

On June 15, the SNO filed a motion requesting a change in Alexandria's placement based on the ICWA preferences. On June 20, the court denied the motion on several grounds: (1) no Indian family existed to which the provisions of the ICWA could be applied; (2) the preferences were unconstitutional in that they denied Alexandria equal protection of the law based on race; (3) the issue of placement preferences was res judicata, having been previously decided by the trial court and not ruled on by this court in the prior appeal; (4) neither the original nor the present request to apply the ICWA preferences was filed in a timely manner.

The trial court then conducted the selection and implementation hearing. All parties stipulated the permanency issues would...