Belinda K. v. Baldovinos

• Decision Date: 13 February 2012
• Docket Number: Case No.: 10-CV-02507-LHK
• Parties: Belinda K. and J.H., her minor son, Petitioners, v. YOLANDA BALDOVINOS, et al., Respondents.
• Court: U.S. District Court — Northern District of California

Belinda K. and J.H., her minor son, Petitioners,

v.YOLANDA BALDOVINOS, et al., Respondents.

Case No.: 10-CV-02507-LHK

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION

Dated: February 13, 2012

ORDER DENYING PETITIONER'S MOTION FOR SUMMARY JUDGMENT

AND GRANTING RESPONDENTS' CROSS-MOTION FOR SUMMARY JUDGMENT

Petitioner Belinda K. ("Petitioner"), mother of minor J.H., an Indian child as defined by the federal Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. ("ICWA"), brings this petition pursuant to 25 U.S.C. § 1914, seeking to invalidate a previous state court child custody determination based on Respondents'¹ alleged failure to comply with certain statutory requirements under ICWA. Specifically, Petitioner seeks to invalidate three orders of the Superior Court for the County of Alameda, Juvenile Division (the "Juvenile Court"): the January 2, 2007 Order, declaring J.H. a dependent of the Juvenile Court ("Jurisdictional Order"); the April 5, 2007 Order, ordering an out-of-home placement for J.H. ("Disposition Order"); and the January 14, 2008 Order, terminating family reunification services ("Termination of Reunification Services Order"). Before the Courtare Petitioner's and Respondents' cross-motions for summary judgment.² The Court held a hearing on the cross-motions on November 8, 2011. Having considered the parties' submissions and arguments and the relevant law, the Court DENIES Petitioner's motion for summary judgment and GRANTS Respondents' motion for summary judgment on all counts.

I. BACKGROUND

A. California Juvenile Dependency Proceedings

In California, dependency proceedings in the juvenile court are special proceedings governed by their own set of rules as set forth in the Welfare and Institutions Code. In re M.C., 199 Cal. App. 4th 784, 790 (2011) (citing In re Chantal S., 13 Cal. 4th 196, 200 (1996)). Section 300 of the Welfare & Institutions Code ("WIC") describes specific situations that will bring a child within the jurisdiction of the juvenile court for dependency proceedings.³ A dependency proceeding may be initiated when the Department of Child and Family Services ("CFS" or the "Agency") files a WIC § 300 petition. Upon filing of a petition, the juvenile court holds a detention hearing to determine whether the child requires emergency removal from the home, followed shortly thereafter by a jurisdictional hearing to determine whether the allegations in thepetition that the child comes within the scope of WIC § 300 are true, in which case the child is declared a dependent of the juvenile court. WIC §§ 315, 334, 356; see Cynthia D. v. Superior Court, 5 Cal. 4th 242, 248 (1993). Jurisdictional findings must be supported by at least a preponderance of the evidence. WIC § 355(a); Cynthia D., 5 Cal. 4th at 248.

If the court finds that it has jurisdiction over the child under WIC § 300, then it conducts a disposition hearing to determine whether the child may remain in the home under court supervision, which may involve "family maintenance services," or whether the child must be removed from the home pursuant to WIC § 361(c), requiring "family reunification services" for twelve months after the child enters foster care.⁴ See WIC §§ 358, 361.5(a)(1)(A), 362. Before determining the appropriate disposition for the child, the court must read and consider the "social study of the child made by the social worker," which must include the individual child's case plan developed pursuant to WIC § 16501.1. See WIC §§ 358(b), 16501.1. A child may be removed from a custodial parent if the juvenile court finds clear and convincing evidence that "[t]here is or would be a substantial danger to the physical health, safety, protection, or physical or emotional well-being of the minor if the minor were returned home, and there are no reasonable means by which the minor's physical health can be protected without removing the minor from the minor's parent's or guardian's physical custody." WIC § 361(c).

The juvenile court continues to monitor the family's progress on the case plan by holding status review hearings every six months. See WIC § 366(a)(1). At these review hearings, the statutory presumption that the child will be returned to parental custody may be overcome if the agency shows, by a preponderance of the evidence, that "the return of the child to his or her parent or legal guardian would create a substantial risk of detriment to the safety, protection, or physical or emotional well-being of the child." WIC § 366.21(e). If by the twelve month review the court does not return the child, and if the court further determines by clear and convincing evidence that reasonable reunification services have been provided or offered to the parents but that there is nosubstantial probability of return within 18 months of removal, then WIC § 366.26 requires the court to terminate reunification services and set the matter for a permanency hearing. See WIC §§ 366.21, 366.26. At the "§ 366.26 hearing," the court selects and implements a permanent plan, which may involve returning the child home, terminating parental rights, appointing a legal guardianship, or ordering long term foster care placement. See WIC § 366.26; Cynthia D., 5 Cal. 4th at 249.

B. The Indian Child Welfare Act

Congress passed ICWA in 1978 in response to findings that "an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions." 25 U.S.C. § 1901(4). ICWA was enacted "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture." 25 U.S.C. § 1902; Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32-36 (1989); see also Navajo Nation v. Confederated Tribes and Bands of the Yakama Indian Nation, 331 F.3d 1041, 1044-45 (9th Cir. 2003). At the heart of ICWA lies a jurisdictional scheme aimed at ensuring that Indian tribes have a role in adjudicating and participating in child custody proceedings involving Indian children domiciled both on and off the reservation. Holyfield, 490 U.S. at 36.

ICWA provides, in relevant part, that an Indian tribe shall have exclusive jurisdiction over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where jurisdiction is otherwise vested in the State by existing Federal law. 25 U.S.C. § 1911(a). If the Indian child is not domiciled on a reservation, the tribe and the State of the child's residence or domicile share concurrent jurisdiction. Id. § 1911(b). Where, as here, the State exercises its concurrent jurisdiction over child custody proceedings involving an Indian child, ICWA provides for a variety of procedural guarantees to ensure that theIndian tribe is given adequate notice and opportunity to participate in those proceedings. See id. § 1912.

C. J.H.'s Dependency Proceedings⁵

This action concerns J.H., an Indian child not domiciled on an Indian tribe reservation, who was removed from his mother's custody on December 19, 2006 at the age of seven. J.H., now twelve, currently remains a dependent child of the Alameda County Superior Court and lives in a highly restrictive foster care group home.

J.H.'s initial removal was precipitated by his elementary school principal Geri Isaacson's report to the police authorities that J.H. had disclosed See Decl. of Geri Isaacson ISO Resp't MSJ ("Isaacson Decl.") ¶¶ 15-17. Isaacson had received a report from a supervising teacher that Isaacson separately interviewed both J.H. and Student B. Student B reported Isaacson Decl. ¶ 11 & Ex. A; Gormley Decl. ISO Resp't MSJ ("Gormley Decl."), Ex. C (Police Report). On December 19, 2006, Isaacson interviewed J.H. in her office and asked what he had to say about Student B's recounting of events. J.H. did not deny any of the events but instead explained that J.H. had According to Isaacson, J.H. explained,Isaacson immediately called both Child Protective Services and the San Leandro Police Department ("SLPD"), as she was required to do by school district policy.⁶ Isaacson Decl. ¶ 16.

SLPD officers arrived and interviewed J.H. privately, outside the presence of Isaacson. Id. They also interviewed Katherine and Michael, family friends who lived with J.H., his mother, and Archie O. The had arrived at the school to pick J.H. up. Gormley Decl. Ex. C. The police investigators interviewed Katherine and Michael separately. Although neither of them believed that anyone at home was J.H., they both commented that they often saw Id. Michael explained that Archie O. Michael also reported that J.H. had once Finally, Michael stated that Archie O. sometimes takes J.H. with him to motorcycle functions, and Michael believed J.H. may have Id.

Based on the principal's report indicating immediate safety concerns for the minor, J.H. was detained by the San Leandro Police Department and brought to the CFS Assessment Center, where he was interviewed that same day by an Emergency Response Child Welfare Worker, Mary Chew. Decl. of Michelle Love ISO Resp't Opp'n to Pet'r MSJ ("Love Decl.") ¶¶ 1- 3. In addition to interviewing J.H., Chew visited J.H.'s home on December 19, 2006, and interviewed J.H.'s mother; her boyfriend, Archie O. and Michael and Katherine During the home visit, J.H.'s mother denied that anyone in the home although she was aware of Love Decl. Ex. A at 2. The school had informed her on previous occasions of J.H. Id. She also knew that J.H. had Id. The mother confirmed that Archie O. Id. The mother further reported that all of Id. at 3. Chew...