In re Santos Y.

• Citation: 92 Cal.App.4th 1274,112 Cal.Rptr.2d 692
• Decision Date: 19 October 2001
• Docket Number: No. B144822.,B144822.
• Court: California Court of Appeals
• Parties: In re SANTOS Y., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent, v. Arturo G. et al., Defendants and Appellants; Grand Portage Band of Chippewa Indians, Interveners and Respondents.

112 Cal.Rptr.2d 692 92 Cal.App.4th 1274 In re SANTOS Y., a Person Coming Under the Juvenile Court Law. Los Angeles County Department of Children and Family Services, Plaintiff and Respondent,
v.
Arturo G. et al., Defendants and Appellants; Grand Portage Band of Chippewa Indians, Interveners and Respondents. No. B144822. Court of Appeal, Second District, Division 2. October 19, 2001. Review Denied February 13, 2002.

[112 Cal.Rptr.2d 697]

[92 Cal.App.4th 1278]

Ernesto P. Rey and John L. Dodd, Los Angeles, for Defendants and Appellants.

No appearance for Respondent.

Vito A. Constanzo, Los Angeles, Holland and Knight, for Interveners and Respondents on behalf of the Grand Portage Band of Chippewa Indians.

Christie Parker & Hale, Brian Brookey; Native American Rights Fund and Mark C. Tilden as Amici Curiae on behalf of Interveners.

Janette Freeman Cochran, Pasadena, for Minor under appointment of the Court of Appeal.

BOREN, P.J.

INTRODUCTION

The trial court, feeling compelled by the Indian Child Welfare Act, ordered the Minor in this dependency case removed from the home of the only parents the Minor knows, and transferred to a home on a Chippewa Indian reservation in Minnesota. We apply the "existing Indian family doctrine" to reverse the trial court's placement order.

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SUMMARY

In a hearing under Welfare and Institutions Code section 366.26,¹ the trial court terminated parental rights and, under authority of the Indian Child Welfare Act (the ICWA or the Act) (25 U.S.C. § 1901 et seq.), ordered Santos Y. (hereinafter, the Minor) removed from his foster adoptive home of his de facto parents, Arturo G. and Lucila G. (also known as Lucila C.) (hereinafter, Appellants), and placed in a preadoptive home on the Grand Portage Band Reservation of the Minnesota Chippewa Tribe in Minnesota.

The Minor is a two-and-one-half-year-old, multi-ethnic boy born prematurely November 25, 1998, in Los Angeles. He has lived in foster care since birth, and with Appellants since he was three months old. Appellants presently remain his caretakers, and were granted de facto parent status. The Minor regards Appellants as his parents, and the permanent plan for the Minor, issued prior to the order considered here, was that Appellants would adopt him should his parents fail to reunify.

The Minor was detained by respondent Los Angeles County, through its Department of Children and Family Services (hereinafter, the Department), immediately after his birth, due to a toxicology screen positive for cocaine. A dependency petition was sustained on January 13,1999, based on the toxicology screen, as well as a finding that the natural parents' home was uninhabitable, littered with trash and debris, vermin-infested, and foul smelling.

The Minor's mother is Kathleen B. (the Mother). The Minor's declared father is Noah B. (the Father, also known as Noah Y.)² The Mother has been separated for four years from her husband, who lives in Los Angeles. She has had an intimate relationship with Noah B. for the past three years.

Each biological parent of the Minor has some Native-American heritage, and both

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now reside in Oregon, where they had lived prior to coming to California, six weeks before the Minor's birth. The parents have not appealed and are not parties to this action. The Father is of Navajo descent through a grandmother, but he is not registered with the Navajo Tribe, nor

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does he participate in any tribal customs. The Mother is an enrolled member of the Minnesota Chippewa Tribe (the Tribe) Grand Portage Band (the Band).

The Tribe is a federally recognized Indian tribe for purposes of the ICWA,³ with headquarters is at Cass Lake in North Central Minnesota. The Tribe has component reservations, and it consists of Chippewa Indians of the White Earth, Leech Lake, Fond du Lac, Bois Forte, and Grand Portage Reservations, and the Nonremoval Mille Lac Band of Chippewa Indians. (The Revised Constitution and ByLaws of the Minnesota Chippewa Tribe, Minnesota, Preamble) (Minnesota Chippewa Constitution).⁴ The governing bodies of the Minnesota Chippewa Tribe are the Tribal Executive Committee and the six Reservation Business Committees. (Minnesota Chippewa Constitution, Article III.) The Grand Portage Band Reservation (the Reservation) is located at the extreme northeastern corner of Minnesota, near that state's juncture with Michigan and the Canadian province of Ontario, and is home to 400 to 500 people.

The court based its determination that the ICWA applied to the Minor on a June 3, 1999, letter from the Tribe to the Mother, stating that: the Mother was of one-half Chippewa descent; she was enrolled in the Grand Portage Band; her father and grandparents had been enrolled members of the Tribe; the "Minor was eligible" under the ICWA; the Tribe would forward her letter to the Band; and the Mother should inform the Department that all notices regarding the Minor should be sent to the Tribe, to the attention of the Tribe's Director of Human Services in Cass Lake, Minnesota.

The Tribe had been served notice of the case on December 17, 1998, within three weeks of the Department's having filed its initial dependency petition, and the Tribe was served regularly thereafter; it made no appearance up to and including the time that reunification services to the parents were terminated on September 21, 1999. At the September 21, 1999 hearing at which the court ordered services to the parents terminated, the court ordered the Department to contact the Tribe and to engage it in attempting to find an adoptive placement for the Minor. In December 1999, after the Tribe

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had located the Mother's first cousin, who had decided that it would be in the Minor's best interest that he be adopted by Appellants, the Tribe notified the Department that it did

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not intend to intervene, and that the Minor should remain where he was placed.

On March 3, 2000, contrary to the Tribe's representations, the Band petitioned in intervention, and on May 30, 2000, it asserted that the ICWA required that the Minor be placed for adoption with a Band member on the Reservation. ICWA placement preferences (25 U.S.C. § 1915(a); Cal. Rules of Court, rule 1439(k)) give priority to tribal and Native American pre-adoptive and adoptive families, absent good cause not to do so.

Based on its finding that the ICWA applied to the Minor, the trial court assumed that the ICWA dictated the Minor's placement. On May 31, 2000, the Chairman of the Grand Portage Reservation Tribal Council wrote to the court, advising that the Band had located a member interested in adopting the Minor. The court held a hearing on September 29, 2000 and October 2-3, 2000, more than 18 months after the Minor had been placed with Appellants, during which it received expert and lay testimony concerning the existence of good cause to deviate from ICWA placement preferences with respect to the Minor's adoptive placement. Appellants and the Minor separately opposed the Band's proposal that the Minor be removed from Appellants and placed on the Reservation. Based on a finding that the Minor did not possess extraordinary physical or emotional needs, the court declined to find good cause to depart from ICWA placement preferences, ordered the Minor removed from his home with Appellants, and ordered him placed with a prospective adoptive mother on the Reservation. Appellants appealed. We issued and dissolved a stay, granted a petition for supersedeas, and appointed counsel for the Minor. Counsel for the Minor filed a respondent's brief in favor of reversing the order of the juvenile court.

We issued a published opinion on July 20, 2001, reversing the trial court's opinion on two grounds: (1) unconstitutionality of the ICWA as applied, under the existing Indian Family Doctrine; and (2) waiver of assertion of ICWA placement preferences. On August 6, 2001, the Band filed a petition for rehearing that did not address our disposition, a reversal of the trial court ruling ordering the Minor placed on the Reservation, but requested instead, further reconsideration of the Band's relationship to the Tribe; the Band requested either rehearing on the issue of the Band's independent entitlement to notice of the dependency proceedings or, in the alternative, deletion of all references in the opinion concerning the Band's separate status as an Indian tribe, waiver, and entitlement to notice under ICWA. Although no competent evidence in the trial court proved that the Band was entitled to notice

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separate from that provided the Tribe, documents filed in support of the Band's petition for rehearing created sufficient ambiguity that we deemed it in the interest of justice to grant rehearing and reconsider the case, notwithstanding our view that application of the doctrine of ostensible agency would compel the conclusion that assertion of ICWA placement preferences had been waived.

After reconsideration, we again reverse the trial court's placement order, finding application of the ICWA to the Minor to be unconstitutional under the Fifth, Tenth, and Fourteen Amendments to the United States Constitution.

FACTUAL and PROCEDURAL BACKGROUND

1. Detention Hearing (December 2, 1998)

The Minor was born prematurely on November 25, 1998, and removed from his parents' care due to a positive toxicology

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screen for cocaine. The Department filed a petition December 1, 1998, alleging that the Minor came within section 300, subdivisions (b) and (c) because he had been born suffering from symptoms of cocaine withdrawal due to his Mother's use, and his Father knew or should have known of the drug use, and had failed to protect him. The Mother admitted the drug use but maintained it was a recent and isolated occurrence. The Minor was ordered into foster care, and the parents were granted visitation three times a week.

The juvenile...