In re M.M.

• Decision Date: 28 August 2007
• Docket Number: No. A115771.,A115771.
• Citation: 154 Cal.App.4th 897,65 Cal.Rptr.3d 273
• Court: California Court of Appeals Court of Appeals
• Parties: In re M.M., a Person Coming Under the Juvenile Court Law. Humboldt County Department of Health & Human Services, Plaintiff and Appellant, v. Michael T., Defendant and Respondent; Karuk Tribe of California et al., Interveners and Respondents; M.M., Appellant.

65 Cal.Rptr.3d 273

154 Cal.App.4th 897

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

Humboldt County Department of Health & Human Services, Plaintiff and Appellant, v. Michael T., Defendant and Respondent; Karuk Tribe of California et al., Interveners and Respondents; M.M., Appellant.

No. A115771.

Court of Appeal, First District, Division 5.

August 28, 2007.

Interim County Counsel, Ralph Faust, Marilyn Dutkus, Deputy County Counsel, for Plaintiff and Appellant Humboldt County Department of Health & Human Services.

Deborah Dentler, for Appellant M.M.

Linda K. Harvie, for Defendant and Respondent Michael T.

California Indian Legal Services, Samuel D. Hough, for Intervener and Respondent Karuk Tribe of California.

Law Office of Gradstein & Gorman, Seth F. Gorman, Half Moon Bay, for Interveners and Respondents Marilyn R. and Jason M.

NEEDHAM, J.

This appeal from an order transferring a case from a California juvenile court to an Indian tribal court pursuant to the Indian Child Welfare Act of 1978 (ICWA), title 25 United States Code section 1901 et seq., raises a question of first impression in California—does the transfer of a juvenile dependency case from state court to tribal court pursuant to title 25 United States Code section 1911(b) deprive the California courts of jurisdiction over the dependency case and thus preclude any appeal from the transfer order? We conclude that it does.

M.M. (Minor) appeals from an order of the Humboldt County Juvenile Court that transferred his dependency proceeding to the Karuk Tribal Court. The Humboldt County Juvenile Court transmitted its case files to the tribal court, the tribal court accepted jurisdiction, and it declared Minor a ward of that court. Because no party requested a stay of the transfer order prior to completion of the transfer, we hold that the California court lost all power to act in the matter upon completion of the transfer of the case. We further hold that as a California appellate court we can provide no effective relief to Minor, because we have no power to order the courts of a separate sovereign—the Karuk Tribe—to return the case to the state courts. We must therefore dismiss this appeal for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

Minor was born on January 24, 2005. On February 10, 2005, the Humboldt County Department of Health and Human Services (the Department) filed a petition alleging that Minor was a dependent child within the meaning of Welfare and Institutions Code section 300, subdivisions (b), (g), and (j). The petition noted that Minor "may be a member of, or eligible for, membership in a federally recognized Indian tribe."

Minor's mother, Roseanna A., is an enrolled member of the Hoopa Valley Tribe. Roseanna identified Chester M. as Minor's father, and Chester signed a declaration of paternity at the hospital the day after Minor's birth; Chester is also listed as the father of the child on Minor's birth certificate. Chester M. is an enrolled member of the Hoopa Valley Tribe. On February 15, 2005, the juvenile court found that Chester M. was Minor's presumed father. Minor was later placed in foster care with Roseanna A.'s relative, Marilyn R. and her partner, Jason M.

The Department's investigation indicated that Minor was reported to be eligible for membership in the Hoopa Valley, Karuk, Yurok, and Porno tribes. In February 2005, a Department social worker spoke with a representative of the Hoopa Valley Tribe, who indicated that the tribe did not wish to intervene in the case at that time.¹ On March 17, 2005, the Department sent a "Notice of Involuntary Child Custody Proceedings for an Indian Child" (Judicial Council form JV-135) to the Hoopa Valley Tribal Council, the Karuk Tribe of California, and the Yurok Tribe, as well as to the Office of the Regional Solicitor of the Department of the Interior.

At the March 29, 2005 jurisdictional hearing, the juvenile court sustained amended jurisdictional allegations. The court found that Minor was a child described in subdivisions (b) and (j) of Welfare and Institutions Code section 300. Although the juvenile court found that notice had been given as required by law, the court left open the question whether notice to the tribes had been adequate. On April 18, 2005, the juvenile court declared Minor a dependent of the court and ordered reunification services for both mother and the presumed father.

On September 22, 2005, the Humboldt County Superior Court received a notice of intervention from the Hoopa Valley Tribe. At the six-month review hearing five days later, the juvenile court granted the request to intervene and continued the review hearing, which was eventually calendared for November 21, 2005. The six-month status review report noted that Minor had applied for enrollment in the Hoopa Valley Tribe but that the eligibility determination process was not yet complete.

At the contested six-month review hearing on November 21, the court terminated reunification services to both Roseanna A. and Chester M. It then set a permanency planning hearing under Welfare and Institutions Code, section 366.26 for March 20, 2006. The court further ordered the Department to submit its report by February 21, 2006.

At a hearing on February 28, the juvenile court noted that it had not received the Department's report. At the same hearing, however, the court and all counsel confirmed receipt of a letter dated February 22, 2006, from respondent Michael T. Michael T. is an enrolled member of the Karuk Tribe. In the letter, Michael T. explained that he had been told that he was Minor's father and expressed a desire to retain his parental rights. He also requested a blood test to establish his paternity over Minor. The Department opposed the request for a blood test, since Chester M. had already been declared Minor's presumed father. The juvenile court did not rule on the request at the hearing.

On March 10, 2006, the Karuk Tribe sent a letter to the Department's social worker stating that the tribe had no records for Minor and that the tribe would support the Department and the Hoopa Valley Tribe in the adoption of Minor. At the time this letter was sent the Karuk Tribe had not been provided with notice that Michael T. had contacted the juvenile court claiming to be Minor's father.

At the March 20, 2006 permanency planning hearing, Michael T. appeared and addressed the court.² He stated that he "would like to establish a paternity test (sic)." Counsel for Minor and Chester M. argued that Michael T. lacked standing to request a paternity test because only the presumed father could request such a test. The juvenile court made no explicit ruling on Michael T.'s request, stating only that "the presumed father is Chester M[.]. By law, there's only one presumed father." The court then proceeded to terminate the parental rights of both Roseanna A. and Chester M., as well as the rights of "any and all other persons claiming to be the mother or father of the child."

In May 2006, the Hoopa Valley Tribe performed a paternity test by drawing blood from Minor, Roseanna A., and Michael T. The test showed a 99.99 percent probability that Michael T. was Minor's father. The Karuk Tribal Council subsequently approved a resolution finding that Minor was eligible for membership in the Karuk Tribe and was the natural child of a member of the Karuk Tribe. The resolution also authorized the tribe's intervention in Minor's dependency proceeding. On July 21, 2006, the children's division of the tribal court of the Karuk Tribe of California entered an "ORDER ACCEPTING JURISDICTION AND AWARDING TEMPORARY CUSTODY." In the order, the tribal court found that Michael T. was Minor's biological father and that Minor was eligible for membership in the tribe. The tribal court also "accepted" the transfer of jurisdiction of the case from the Humboldt County Juvenile Court.³ Its order further provided that "effective upon transfer from the California Superior Court, [Minor] is adjudged a temporary Ward of the Children's Division of the Karuk Tribal Court with temporary legal custody awarded to the Karuk Tribe of California Department of Child and Family Services."

Shortly thereafter, on July 28, 2006, the Karuk Tribe filed in Humboldt County Juvenile Court a notice of intervention and a request to transfer jurisdiction to the Karuk Tribal Court. On August 1, 2006, the tribe filed in the juvenile court a petition to invalidate the court's earlier termination of parental rights. The following day, the Hoopa Valley Tribe filed a notice of withdrawal of intervention. In its notice, the Hoopa Valley Tribe stated that Minor was not eligible for membership in the Hoopa Valley Tribe.

On August 7, 2006, Minor's case was calendared for a hearing on the intervention by the Karuk Tribe and the tribe's motion to transfer jurisdiction.⁴ The juvenile court inquired whether anyone disputed that Minor was the biological child of a Karuk Tribe member. Neither counsel for the Department nor counsel for Minor offered to refute the blood test results showing that Michael T. was Minor's father. The juvenile court then found that "it does appear from the state of the record, and no one has shown otherwise or objected otherwise, that—that the child's tribe is the Karuk Tribe since he is the biological child of a member of the Karuk Tribe, Mr. T[.], by the record before it, the evidence before the Court, and is either a member of or eligible for membership in the Karuk Tribe." The juvenile court therefore confirmed the Karuk Tribe's right to intervene in the case.

At the continuation of the hearing on August 8, the court appointed counsel for Michael T. That same day, Michael T. filed a parental notification of Indian status, stating that he was a member of the Karuk Tribe and that Minor was a member or eligible for membership in the tribe. Michael T. also filed a statement regarding paternity in which he stated that he...