Brandon M., In re

• Decision Date: 13 May 1997
• Docket Number: No. A074137,A074137
• Citation: 63 Cal.Rptr.2d 671,54 Cal.App.4th 1387
• Court: California Court of Appeals Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 3624, 97 Daily Journal D.A.R. 6133 In re BRANDON M., a Person Coming Under the Juvenile Court Law. SONOMA COUNTY HUMAN SERVICES DEPARTMENT, et al., Plaintiffs and Respondents, v. EVITA H., Defendant and Appellant.

Page 671

63 Cal.Rptr.2d 671

54 Cal.App.4th 1387, 97 Cal. Daily Op. Serv. 3624,

97 Daily Journal D.A.R. 6133

In re BRANDON M., a Person Coming Under the Juvenile Court Law.

SONOMA COUNTY HUMAN SERVICES DEPARTMENT, et al., Plaintiffs and Respondents, v. EVITA H., Defendant and Appellant.

No. A074137.

Court of Appeal, First District, Division 2, California.

May 13, 1997.

Review Denied Aug. 20, 1997.

Alan Siraco, for Evita H.

James P. Botz, County Counsel, Tara Harvey, Deputy County Counsel, for Sonoma County Human Services Dept.

HAERLE, Associate Justice.

I. INTRODUCTION

This is an appeal from a March 29, 1996, order of the juvenile court granting Roger H. of Arkansas de facto parent status as to the fifteen-year-old minor who was one of the three juvenile subjects of the proceeding below. It is also a purported appeal from a portion of an April 8, 1996, order of the same court permitting the minor to go to Arkansas "for a ninety-day trial home visit" with Roger H. We affirm the former order and dismiss the purported appeal from the latter.

II. FACTUAL AND PROCEDURAL BACKGROUND

In early 1995 appellant Evita H. (sometimes hereafter the mother) and her three children were living in Lake County. On April 18 of that year, the three minors were taken into protective custody by the Clear Lake police department. Three days later, petitions were filed on behalf of each child under Welfare and Institutions Code section 300, subdivision (b). The petitions alleged that the children had suffered or would suffer serious physical harm as a result of the failure of appellant to provide adequate food, clothing, shelter or medical care and by her inability to provide regular care due to, among other things, substance abuse.

The petitions included specific allegations to the effect that the mother's home was without adequate food, heat or water, as well as the fact that drugs and drug paraphernalia were found in the home, including in the children's rooms. The petitions further alleged that the mother was taking a variety of prescription drugs that affected her ability to care for her children.

In May 1995 a jurisdictional hearing was held in Lake County Superior Court; that court sustained the allegations of the petition. The following month the case was transferred to Sonoma County, where the mother was then residing.

Brandon, the child that is the subject of this appeal, was 13 years old at the time of the jurisdictional hearing and is now 15. His biological father, James M., has never been involved with his son and his whereabouts are totally unknown. When Brandon was five months old, the mother met Roger H. and shortly thereafter they began living together in Washington State. Two half brothers, Marcus and Joshua, the other two children who were subjects of the original petitions, were born to the couple in 1982 and 1983 respectively. Their parents were married in 1983.

Between 1983 and 1989, the family moved from Washington State to Missouri and then to Texas. The mother and Roger H. separated in May 1989; their marriage was subsequently dissolved and Roger H. moved to Arkansas where he presently resides with his current wife and stepchildren. After the separation, the mother had primary custody of the children, with Roger H. retaining visitation rights with all three children until the mother moved with them to California in late 1989.

The evidence is conflicting regarding Roger H.'s knowledge concerning and contact with the children during the first few years of their residency in California. There is, however, no dispute that contact between all three of the boys and Roger H. was renewed in 1992. Indeed, according to Roger H., Brandon called him to ask for assistance in paying outstanding bills for the family. Once contact was reestablished, all three of the boys spent time with Roger H. in Arkansas every year; in 1994, Brandon stayed there for several months. In early 1995, Brandon called Roger H. to ask for money to pay outstanding water bills. Subsequent investigations (initiated in part at least by a call made by Roger H. to Lake County Child Protective Services) led to the filing of the original petitions on behalf of all three children.

Brandon and his two half-brothers are all recognized members of the Stewart's Point Rancheria tribe of Pomo Indians (the Tribe).

The contested disposition hearing was scheduled for September 1995 in Sonoma County. Roger H. and the mother both asked that the children be placed with them. Additionally, an Interstate Contract for the Placement of Children was initiated with Arkansas and a home study of Roger H. was requested.

At a settlement conference on August 28, 1995, prior to the disposition hearing, the parties were able to come to an agreement, which included a stipulation that (a) Roger H. would have two supervised visits with the three boys before returning to Arkansas, (b) the minors would be placed in an approved Indian foster home, (c) the mother would have supervised visitation with the minors, and (d) reunification services would be offered to both the mother and Roger H.

A six-month review hearing was set for March 1, 1996. ¹ In the six-month report prepared for the court, the social worker extensively discussed the boys' current situation and each parent's progress (or lack thereof) in completing their respective service plans; it also made recommendations to the court. The social worker addressed in detail the mother's continued denial of prior drug use and her failures with respect to her service plan. The social worker also made, rather emphatically, the point that the three boys "should not be separated, as Ms. [H.] well knows. Their emotional survival depends upon their remaining intact as a team. As one goes, so goes the rest. Brandon's younger brothers would not countenance being separated from their brother for any reason, nor should they."

In advance of the six-month hearing, Roger H. filed a request that he be declared the de facto parent of Brandon. A hearing on this request was also set for March 1. On that date, all parties were in court. Additionally, the Tribe, which had been involved with the dependency process, filed a notice of appearance of its attorney of record, California Indian Legal Services, Inc. Its attorney appeared at the March 1 hearing, accompanied by the chairperson of the Tribe.

At that hearing, the mother objected to the Department's recommendations that her reunification services be terminated and that the children be placed with Roger H. She also opposed Roger H.'s request to be declared Brandon's de facto father. As a result, the matter was placed on the court's master calendar for March 29 for the scheduling of a contested review hearing. The court directed that any party wishing to respond to Roger H.'s motion regarding de facto parent status do so within ten days. The mother filed her opposition to Roger H.'s motion on March 11. Two days later, the Tribe filed a pleading regarding the same motion, effectively stating that de facto status should be granted to Roger H. Simultaneously, it filed a "Statement in Support of Transfer of Minors to Custody of Roger H[.]" reiterating that position.

On March 29, Judge Arnold Rosenfield filed a written order granting Roger H.'s motion to be declared Brandon's de facto parent. On the same day, the case was assigned for the contested hearing to Judge Raymond Giordano, with that hearing scheduled to commence on April 1.

All parties were present in court on that day. After opening statements by each of the attorneys present, and a recess to permit the court to study the six month report and the Arkansas "home study" that had been completed on Roger H., counsel requested a conference with the judge. After that conference, a settlement agreed to by all parties was put on the record. The gist of the settlement was that all three boys would commence a 90-day trial visit with Roger H. in Arkansas, after which they would be returned to California for a visit with appellant, reunification services to appellant would be continued, and the matter would be reviewed again by the court in July. A formal order to this effect was signed by Judge Giordano on April 4 and filed four days later.

On April 26, the mother filed a timely appeal from the court's written order granting Roger H.'s motion to be declared Brandon's de facto parent.

III. DISCUSSION

A. The Mother's Appeal from the Court's Order Granting Roger H. "De Facto Parent" Status

The mother's appeal from the court's March 29 order granting de facto parent status to Roger H. is based entirely on a single premise: California's de facto parent doctrine is preempted by the federal Indian Child Welfare Act (25 U.S.C. §§ 1901-1923) (ICWA). Addressing this contention requires some brief review of (a) the doctrine of preemption, (b) California's de facto parent doctrine, and (c) the purpose and thrust of the ICWA.

The preemption doctrine derives from the supremacy clause of the United States Constitution which declares that the "Laws of the United States ... shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding." (U.S. Const., art. VI, § 2.)

"Whether federal law preempts state law 'fundamentally is a question of congressional intent....' [Citations.]" (Smiley v. Citibank (1995) 11 Cal.4th 138, 147, 44 Cal.Rptr.2d 441, 900 P.2d 690, aff'd. --- U.S. ---- [116 S.Ct. 1730, 135 L.Ed.2d 25].) When addressing a preemption question, we start "with the assumption that the historic police powers of the States [are] not to be superseded by ... Federal Act unless that [is] the clear and manifest purpose of Congress." (Cipollone v. Liggett Group, Inc. (1992) 505 U.S. 504, 516, 112 S.Ct. 2608, 2617, 120 L.Ed.2d 407; see also Smiley v. Citibank, supra, 11 Cal.4th at p. 148, 44 Cal.Rptr.2d 441, 900 P.2d 690.) "Therefore, cou...