Crystal R. v. Superior Court

• Citation: 59 Cal.App.4th 703,69 Cal.Rptr.2d 414
• Decision Date: 26 November 1997
• Docket Number: No. H016859,H016859
• Court: California Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 8977, 97 Daily Journal D.A.R. 14,439 CRYSTAL R., a minor, etc., et al. Petitioners, v. The SUPERIOR COURT of Santa Cruz County, Respondent, COLLEEN C. et al., Real Parties in Interest.

Page 414

69 Cal.Rptr.2d 414

59 Cal.App.4th 703, 97 Cal. Daily Op. Serv. 8977,

97 Daily Journal D.A.R. 14,439

CRYSTAL R., a minor, etc., et al. Petitioners, v. The SUPERIOR COURT of Santa Cruz County, Respondent, COLLEEN C. et al., Real Parties in Interest.

No. H016859.

Court of Appeal, Sixth District, California.

Nov. 26, 1997.

As Modified Dec. 16, 1997.

Review Denied Feb. 18, 1998.

Sharon Saldavia, Santa Cruz; Shannon M. Sullivan, Los Angeles, for Petitioners.

No appearance for Respondent.

Ted Meneice; J. J. Hamlyn III, Santa Cruz, for Real Parties in Interest.

BAMATTRE-MANOUKIAN, Associate Justice.

Crystal R., the child who is the subject of these dependency proceedings, is seven years old. Her father, who is of Indian heritage, has been incarcerated almost all of her life and barely knows her. Her mother, a non-Indian, tried to raise Crystal by herself but, because of her problems with drug addiction, was unable to provide adequate parenting. Crystal has been cared for throughout these past seven years by her mother's aunt and uncle, who, like the mother, are non-Indian. They have provided the only constant and continuing source of stability in Crystal's life and she has become part of their family in recent years. In this writ petition, Crystal and her de facto parents now ask this court to allow their family ties to become permanent and legal.

In opposition to the petition, Crystal's biological parents contend that the juvenile court must apply the requirements of the Indian Child Welfare Act (the ICWA or the Act) before terminating parental rights and freeing Crystal for adoption by the aunt and uncle. The ICWA, enacted in 1978, was Congress' response to statistics showing a widespread practice of unwarranted removal of Indian children from their families by social services agencies. Congress declared that the policy behind the Act was "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families." (25 U.S.C. § 1902.) This was to be accomplished in part by the establishment of "minimum Federal standards" governing the removal of Indian children from their families and the placement of such children according to preferences for homes reflecting Indian culture. (Ibid.)

We do not believe the policies underlying the Act are served by its application in the circumstances before us, where the Indian parent has not been part of the child's life, the record does not reveal that he has maintained any significant ties with Indian culture and the child has formed strong bonds with her non-Indian adoptive parents, who in this case are members of her extended family. Two other California Courts of Appeal have recently refused to apply the special protections of the Act in circumstances where there is no existing Indian family to protect. (In re Bridget R. (1996) 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507 (Bridget R.) and In re Alexandria Y (1996) 45 Cal.App.4th 1483, 53 Cal.Rptr.2d 679 (Alexandria Y.).) We now join those courts in adopting the "existing Indian family" doctrine.

Accordingly, we will grant the writ petition and return the matter to the juvenile court so that the court may conduct a hearing to determine whether there is factual support to establish that Crystal was part of an existing Indian family, so as to justify the application of the ICWA. In the event that no existing Indian family is found, the court is to proceed

with the selection and implementation hearing under state law.

BACKGROUND

Crystal R. was born on October 26, 1990. Her mother and father were not married. In fact, up until several months before Crystal was born, the mother was still formally married to another man. Crystal's mother has struggled with drug addiction most of her adult life. Crystal's father has a lengthy criminal history and has spent much of his adult life in prison. Not surprisingly, the mother and father's relationship has been sporadic and unstable. For example, when Crystal was six months old, the father was placed on parole. The following month he violated parole, and was subsequently reincarcerated, when he harassed the mother at her home and threatened to take away baby Crystal.

In January of 1993 when Crystal was two years old, she was placed in emergency foster care when the mother was arrested for driving under the influence of heroin. When the mother was released from jail, Crystal was returned to her. The mother refused voluntary services at that time. Two additional referrals to Child Protective Services involved neglect or abuse of Crystal due to the mother's drug use.

The following year, when Crystal was three, the mother violated probation and was arrested for being under the influence of a controlled substance, possessing hypodermic needles, and for child endangerment. The sheriff found the mother and Crystal to be living in a home with many hazards to Crystal's personal safety. Crystal was unclothed and had a fresh cut from a razor.

On January 25, 1994, a petition was filed by the Santa Cruz Human Resources Agency (hereafter, the Agency) alleging that the mother was unable to care for Crystal. (Welf. & Inst.Code, § 300, subd. (b).) An amended petition alleged that the father was incarcerated and had not provided support for his child. (Welf. & Inst.Code, § 300, subd. (g).) According to the social worker's report, the father had never had any significant contact with Crystal. The mother expressed fear of the father and wanted her whereabouts and Crystal's kept confidential.

On February 18, 1994, the petition was sustained, Crystal was declared a dependent of the court and, pursuant to her mother's request, she was placed in the home of the mother's aunt and uncle, who had cared for Crystal at various times since her birth. A case plan for reunification was developed for the mother. The father was in prison and did not appear at the hearing. The social worker's report noted that Crystal was a "Possible Alaskan Native," and an "Indian Heritage Questionaire" was sent to the father.

At the six-month review hearing on August 19, 1994, Crystal's dependency and current placement were continued. The mother was following the recommended activities on her service plan and had been participating in a six month program at New Life Center. She had obtained a job and was motivated to have her child returned to her. Crystal had initially exhibited some behavioral problems after being removed from her mother's custody. However she had subsequently adjusted to living with the aunt and uncle, although she missed her mother. Unsupervised visits were ordered, starting September 1, 1994. The father was incarcerated at Pelican Bay and did not make an appearance.

On September 16, 1994, the court appointed counsel to represent the father. Counsel informed the court that the father had told her he was descended from the Haida Indian Tribe in Alaska. The court ordered the Agency to provide notice to the tribe in accordance with the Indian Child Welfare Act.

At a hearing on October 28, 1994, the social worker advised the court that she had not heard from the mother and was concerned. A case plan was prepared for the father and the court ordered that a visit be arranged between Crystal and her father in prison. Meanwhile, the Agency initiated contact with the Haida Corporation in Juneau, Alaska.

On November 29, 1994, the Central Council of Tlingit and Haida Indian Tribes of Alaska (the tribe) noticed its intent to intervene At the 12-month review hearing on March 3, 1995, the social worker reported that the mother had relapsed to drug use. She had been rearrested and upon her release from jail, she had entered a 28-day residential program, which she had completed successfully. She renewed her commitment to pursue recovery and be reunited with her daughter. She had been visiting with Crystal once or twice monthly. Crystal had been transported to prison to visit with her father on December 2, 1994. She was four years old at the time. Aside from brief contact when she was a small baby, this was the first time Crystal had ever visited with her father. Crystal and her father visited a second time at a court appearance in January of 1995. Interaction between the two was limited.

in the dependency proceedings. The notice identified the father as one-half Haida. He had been recently enrolled as a tribal member as of November 10, 1994. Crystal was therefore one-fourth Haida by blood. She was not enrolled but was eligible for membership. ¹

Crystal was adjusting well to home life with the aunt and uncle. They were very interested in the dependency proceedings and had been granted standing as de facto parents. Counsel for the father reported that the father and the tribe had wanted to place Crystal with the father's sister in Salinas. However, attempts to contact the sister and initiate this placement were unsuccessful. At the conclusion of the 12-month hearing, the court ordered an additional six months of services. A further order provided that the father was to have monthly visits with Crystal while he was in custody.

At the 18-month review on July 21, 1995, the social worker reported that the mother was living in a clean and sober environment and had "worked hard" on completing her case plan. She was working with Families In Transition and was active in her AA/NA program and at the Parent Center. She had given birth to a baby boy in April of 1995. She had graduated successfully from a six-month perinatal program. Her visits with Crystal had been increased gradually and had been going well. Crystal was comfortable with her mother and had told the aunt and uncle that she would like to live with her mother again. Crystal had visited her father in prison two more times. Although he expressed an interest in reuniting with Crystal, he had not been able to complete his service plan while in prison.

The court recommended returning Crystal to her mother b...