Crystal K., In re

• Decision Date: 24 December 1990
• Citation: 226 Cal.App.3d 655,276 Cal.Rptr. 619
• Court: California Court of Appeals Court of Appeals
• Parties: In re CRYSTAL K., a minor. CYNTHIA W., Petitioner and Respondent, v. JOSEPH K., Defendant and Appellant. Civ. C006504.

Page 619

276 Cal.Rptr. 619

226 Cal.App.3d 655

In re CRYSTAL K., a minor.

CYNTHIA W., Petitioner and Respondent, v. JOSEPH K., Defendant and Appellant.

Civ. C006504.

Court of Appeal, Third District, California.

Dec. 24, 1990.

Review Denied March 14, 1991.

California Indian Legal Services, Mary J. Risling, for objector and appellant.

Alfred S. Wilkins, Weaverville, for petitioner and respondent.

DAVIS, Associate Justice.

Joseph K. appeals from a judgment declaring Crystal K. free from his parental custody and control (Civ.Code, § 232). Joseph contends that certain minimum federal standards applicable to termination of parental rights to an Indian child as set forth in the Indian Child Welfare Act of 1978 25 U.S.C. §§ 1901 et seq., ¹ ("the Act" or "ICWA") were not met necessitating a reversal of the judgment and a dismissal of the petition. We hold that the Act is applicable to a petition by an Indian child's non-Indian mother to terminate the parental rights of the child's Indian father. We shall reverse and remand with directions.

FACTS

Crystal was born on December 5, 1981, in Anchorage, Alaska. In October of 1982, Crystal's mother and father, Cynthia and Joseph, separated. Cynthia and Crystal moved to Trinity County and Cynthia obtained a dissolution of marriage on November 30, 1983. Cynthia married Jeffrey W. on May 22, 1985, and gave birth to twins on November 1, 1986.

On November 9, 1987, Cynthia filed a petition to have Crystal declared free from Joseph's parental custody and control. She alleged that Joseph had not provided any support for the minor since April of 1983, and had virtually no contact with the minor.

On December 14, 1987, counsel was appointed for Joseph. On December 28, 1987, the Native Village of Chanega (Native Village) moved to intervene alleging it is a federally recognized Indian tribe, that Crystal was a member of the tribe, and that the ICWA authorized the Indian child's tribe to intervene at any point in a state court proceeding. The court granted Native Village's motion to intervene.

Native Village moved for judgment on the pleadings on the grounds that the petition failed to state facts sufficient to constitute a cause of action in that the petition did not show compliance with minimum federal standards for termination of parental rights as required by the ICWA. The court granted the motion with leave to amend.

In her amended petition, Cynthia alleged that Joseph drank to excess, was abusive to her, and that they separated only after all remedial and rehabilitative efforts failed. She further alleged that Crystal did not know her father, had never lived with him since she was one year old, considered Jeffrey W. her father, and that the continuation of Joseph's custodial rights would likely result in serious emotional or physical injury to the minor.

At trial, the parties stipulated that the termination of the parent and child relationship would result in the minor's loss of membership in the Native Village and all benefits of such membership including higher education benefits.

Cynthia testified that Joseph did not work but rather "played" during the time they lived together in Alaska. She claimed he had a drinking problem which in part caused their separation. During the marriage, she attempted to help correct his problem as did his mother but he only got angry and would not admit he had a problem. Concerning Joseph's subsequent attempts to solve his drinking problem, Cynthia relied on Joseph's statement given to the social worker that he hoped to be working soon upon completion of an alcohol rehabilitation program.

Cynthia claimed that Joseph spoke with Crystal about three times over the telephone, wrote no letters to Crystal, and sent her support payments only during the first year. Cynthia stated that Crystal was aware that she was part Indian. Although she claimed she was not adverse to Crystal knowing more about her heritage, Cynthia did not intend forcibly to educate Crystal about her cultural ties. Cynthia knew the Jeffrey W. claimed Crystal considered him to be her father and he desired the termination of Joseph's parental rights. However, if termination did not occur, he intended to treat Crystal as a member of his family and as his daughter. Based on his own personal computations, he claimed he was three-eighths Cherokee. He was not a member of the Cherokee tribe, did not participate in any Indian benefits such as educational benefits, and did not know the eligibility criteria for participation in any federal programs available for Indian people. He, like his parents and grandparents, desired to make it on his own without any assistance from the government. He knew Crystal would lose eligibility for federal benefits if the parent-child relationship was severed. He offered to provide Crystal with whatever she needed.

termination of the parent and child relationship between Joseph and Crystal meant the loss of Crystal's membership in the Native Village.

Trinity County Mental Health clinical psychologist Donald Williams interviewed Cynthia and Crystal. He met with Crystal once for 45 minutes in a clinical setting but performed no psychological testing. He never conversed with Jeffrey in a clinical setting nor with Joseph. Dr. Williams claimed he spoke with Mr. Brody, a former member of the Hoopa tribe, for Indian background information. Dr. Williams did not specifically know anything about Brody's background but recalled that Brody did some work in the Hoopa area and was familiar with Indian culture and heritage. While he found Crystal and Jeffrey to have bonded to one another, he did not foresee any serious emotional problem for Crystal if that relationship was never legalized. He considered Crystal already to be psychologically a part of her present family and to remove her would cause a serious emotional problem. However, maintaining the status quo would not result in any serious emotional or physical harm to Crystal.

Upon the conclusion of Cynthia's evidence, Joseph and the Native Village moved for judgment pursuant to Code of Civil Procedure section 631.8 claiming Cynthia failed to meet the substantial burdens imposed by the ICWA. The court declined to grant the motion based on its lack of certainty of the provisions of the ICWA and requested the parties to present their evidence.

Royal Earl Alsup, a clinical psychologist who specialized in ethnic and Indian psychology, opined that the termination of the parental rights and tribal rights would result in serious psychological and emotional problems for the Indian child due to the loss of identity in terms of self-esteem and emotional needs. Although not an Indian himself, Dr. Alsup's wife is Yurok and Hoopa and their children are Indian. He also concluded that the well-being of Indian people demanded that they not be severed from their Indian culture because it has been shown that they turn against the culture in which they are raised and end up without an identity. He considered a treatment plan for an alcoholic Indian person to differ from a treatment plan for a non-Indian person in that it would have to suit the tribal culture and involve Indian value systems. He opined that the termination of the tribal rights would harm the Indian child. Dr. Alsup also believed rehabilitation efforts were required before termination of Joseph's parental rights.

The Native Village presented a Department of Interior, Bureau of Indian Affairs' (BIA) certification of the degree of Indian blood proving Joseph is four quarters Aleut.

The court in its tentative decision granted the petition, finding Joseph had abandoned the minor and that it would be detrimental for the child within the meaning of California law to not grant the petition. (Civ.Code, § 232, subd. (a)(1).) The court determined that the Act was inapplicable. The Native Village objected to the proposed statement of decision as contrary to law. The court overruled the objections and entered a decree terminating Joseph's parental custody and control.

DISCUSSION

Relying on Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30 109 S.Ct. 1597, 104 L.Ed.2d 29 and In re Junious M. (1983) 144 Cal.App.3d 786, 193 Cal.Rptr. 40, Joseph contends that the ICWA is applicable to the instant proceedings. Our review of the Act's various provisions leads us to conclude the same.

In adopting the ICWA, Congress made the following findings:

"(1) that clause 3, section 8, article I of the United States Constitution provides that 'The Congress shall have Power ... To regulate Commerce ... with Indian tribes' and through this and other constitutional authority, Congress has plenary power over Indian affairs;

"(2) that Congress, though statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;

"(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;

"(4) 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; and

"(5) 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." (§ 1901.)

Congress included in the Act its policy statement:

"The Congress hereby declares that it is the policy of this Nation to protect the...