In re Desiree F.
| Decision Date | 29 August 2000 |
| Docket Number | No. F034698.,F034698. |
| Citation | 83 Cal.App.4th 460,99 Cal.Rptr.2d 688 |
| Court | California Court of Appeals Court of Appeals |
| Parties | In re DESIREE F., a Person Coming Under the Juvenile Court Law. Kings County Human Services Agency, Plaintiff and Respondent, v. Daniel F. et al., Defendants; Picayune Rancheria of the Chukchansi Indians, Objector and Appellant. |
Carol E. Helding and Neil A. Helding, Hanford, for Objector and Appellant.
Denis A. Eymil, County Counsel, and Jeanette Cauble, Deputy County Counsel, for Plaintiff and Respondent.
Patricia M. Belter, Hanford, for Minor.
Picayune Rancheria of the Chukchansi Indians (the Tribe) appeals from an order denying its motion to intervene in a child dependency proceeding relating to Desiree F. and to invalidate those actions taken in alleged violation of the Indian Child Welfare Act of 1978 (ICWA or the Act). (25 U.S.C. § 1901 et seq.) Respondent Kings County Human Services Agency (Agency) contends that: (1) the motion to intervene was untimely, and (2) substantial evidence supports a finding that Desiree was not an Indian child within the meaning of the Act.
We will conclude that the trial court erred when it denied the motion to intervene and will reverse.
Desiree was born on August 10, 1997, and tested positive for cocaine and opiates. On August 14, 1997, a petition under Welfare and Institutions Code section 3001 was filed in Fresno County alleging that Desiree should be declared a dependent of the court. The first page of the dependency petition noted that Desiree may fall within the provisions of the ICWA. The Fresno County Department of Social Services detention report indicated the minor's mother, Patricia H., is Chukchansi Indian.
The record reflects that only the mother and alleged father, Daniel F., were notified of the detention and dispositional hearings; there is no indication in the record that the Tribe was notified as required by the Act.2 Desiree's grandmother, Louise Atwell, was in contact with the social worker and requested the minor be placed with her. Mrs. Atwell is a member of a recognized Indian tribe, although not the Chukchansi tribe.
Desiree was ordered placed in foster care as of August 18, 1997. After that date, with the exception of one hearing in October 1997, the mother did not attend further hearings held in Fresno County.
An assessment of the mother prepared in September 1997 notes she is an "Indian/Alaskan female." A document prepared by the Fresno County caseworker in November 1997 contains a statement that the mother is not an Indian because the "Chukchansi deny she is a member of the tribe." This document also states that the determination that the mother was not a member of an Indian tribe was based on a "letter sent by Kings County July 22, 1996." The letter was not attached to the document.
The combined jurisdictional/dispositional hearing was held on December 18, 1997, in Fresno County. The court declared the minor a dependent and ordered reunification for the father. The whereabouts of the mother were unknown at this time and no reunification services were ordered for the mother. The Fresno County court did not make any finding as to the applicability of the ICWA. At this hearing, the court also relieved counsel for the mother and ordered the case transferred to Kings County.
Kings County accepted the transfer of the minor's dependency case on March 11, 1998. The Kings County court found that reasonable services had not been provided or offered to the father and ordered continued reunification services for him. The record reflects that no efforts were made by Kings County to notify the Tribe of the pending proceedings regarding Desiree. At the March 11 hearing, the Kings County court set a hearing for September 9,
1998, and denominated it as a six-month review hearing. The mother was not present at this or subsequent hearings, and the Kings County court did not appoint counsel for her, although the ICWA states the court must appoint counsel for indigent parents of an Indian child. (25 U.S.C. § 1912(b).)
On August 11, 1998, Desiree was moved to a foster home in Kings County. This was apparently Desiree's third foster home since being removed from her mother.
Desiree's father was present at the September 9, 1998, review hearing. A further hearing was scheduled for March 9, 1999, and denominated as a 12-month review hearing. At the March 9 hearing, the father requested a contested evidentiary hearing be set. The parties reached a resolution on April 13, 1999, and a status review hearing was scheduled for the following week.
At the status review hearing on April 21, 1999, counsel for the Agency indicated the father had tested positive for methamphetamine. The Kings County court terminated reunification services and set a section 366.26 hearing for August 18, 1999.
Desiree's father was served with notice of the section 366.26 hearing; the mother was served by way of substituted service on Mrs. Atwell. The Tribe was not notified of the section 366.26 hearing. The notice of the hearing set forth the recommendation that parental rights be terminated and Desiree be placed for adoption. No testimony was presented at the hearing, as the Agency submitted on the basis of the social worker's report. The ICWA, however, provides that parental rights may only be terminated if evidence beyond a reasonable doubt, including the testimony of expert witnesses, established that continued custody of the Indian child by the parent would result in serious emotional or physical damage to the child. (25 U.S.C. § 1912(f).) At the conclusion of the section 366.26 hearing, the court scheduled a permanent plan hearing for February 16, 2000.
On August 17, 1999, Desiree's foster family wrote the juvenile court, expressing an interest in providing a permanent home for Desiree.
On October 18, 1999, after the section 366.26 order terminating parental rights but prior to the scheduled permanent plan hearing, the Tribe filed its "NOTICE [OF] TRIBAL INTERVENTION PURSUANT TO 25 U.S.C. § 1911(c)." The pleadings were signed by Christina Olin, a representative of the Tribe. The Tribe's moving papers asserted that Desiree was eligible to be enrolled as a member of the Tribe; the Tribe had not been notified of the dependency proceedings regarding Desiree; the ICWA had not been complied with as regards the Tribe's rights or the mother's rights; and the Tribe sought to intervene and place Desiree with her grandmother, Mrs. Atwell. Included with the moving papers was a copy of the tribal resolution signed by the tribal council, which authorized Ms. Olin to act on behalf of the Tribe with respect to ICWA matters. The Tribe asserted it was entitled as a matter of law to intervene in the proceedings and that all prior acts of the court had to be set aside as in violation of the ICWA.
The motion to intervene was set for hearing on November 22, 1999. Prior to that date, the tribal chairman wrote a letter to the juvenile court stating that Desiree was eligible for enrollment in the Tribe. The foster family again wrote the court indicating Desiree had been in their care for a year. The foster family expressed concern over the desire of the minor's biological family to adopt Desiree.
The Agency filed untimely opposition to the motion on November 22, 1999. Attached to the opposition was the July 22, 1996, letter from the former tribal chairman. That letter stated in part that Patricia H. "is not a blood relative of the Chukchansi Tribe" and therefore "cannot be enrolled." The letter concluded with the statement that "[i]t is no longer necessary to notify or involve our Tribal Office on court matters concerning children of Patricia [¶]." The hearing on the motion to intervene was continued to December 22,1999.
On December 16, 1999, the Tribe filed a supplemental motion to intervene. Attached to the supplemental motion was a letter from the current tribal chairman indicating that Desiree had been enrolled as a member of the Tribe as of December 6, 1999. The supplemental pleadings also noted that the minor's aunt and uncle, as well as her maternal great-great-grandfather (erroneously referred to in the pleading as the maternal grandfather) were enrolled members of the Tribe; the maternal grandmother is enrolled in another federally recognized tribe. The supplemental pleadings also stated there was an enrollment application pending for Patricia H.
As for the letter dated July 22, 1996, in the supplemental pleadings the Tribe asserted several grounds for objecting to the Agency's or the juvenile court's relying on that letter: (1) the letter predates the minor's birth and does not specify whether Desiree is eligible to be a member of the Tribe; (2) the letter was not accompanied by any resolution of the tribal council authorizing the then tribal chairman to act on behalf of the Tribe in ICWA matters; and (3) even if the Agency could rely on the 1996 letter, it had now been established that Desiree was an enrolled member of the Tribe, and the ICWA allowed intervention at any time in the proceedings.
At the start of the December 22, 1999, hearing on the motion, the parties stipulated that as of December 6, 1999, Desiree was an enrolled member of the Tribe. The Tribe's enrollment specialist, Susann Contreras, testified regarding the tribal enrollment of Desiree's great-great-grandfather, great-grandmother, aunt, and uncle. The tribal specialist also testified that tribal membership was not based on "blood quantum," tribal membership was determined by the tribal council, and only the council or those specifically authorized by the council was authorized to give out information regarding tribal enrollment.
Christina Olin next testified that she first became aware of Desiree's existence on August 31, 1999. Olin further testified that Desiree's grandfather was an enrolled member...
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