In re Santos Y.

Decision Date20 July 2001
Docket NumberNo. B144822.,B144822.
Citation90 Cal.App.4th 1026,110 Cal.Rptr.2d 1
CourtCalifornia Court of Appeals Court of Appeals
PartiesIn re SANTOS Y., a Person 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.

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

No appearance for Respondent.

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

Christie Parker & Hale, Irvine, 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" and the doctrine of waiver to reverse the trial court's placement order.

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. (hereafter the Minor) removed from his foster adoptive home with his de facto parents, Arturo G. and Lucila G. (also known as Lucila C.) (hereafter Appellants), and placed in a pre-adoptive home on the Grand Portage Reservation of the Minnesota Chippewa Tribe (the 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, 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 (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 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 does he participate in any tribal customs. The Mother is an enrolled member of the Tribe.

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; and the "Minor was eligible" under the ICWA.

The Tribe had been served notice of the case on December 17, 1998, within three weeks of the Department 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 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 not intend to intervene, and that the Minor should remain where he was placed.

On March 3, 2000, contrary to these representations, the Tribe, in the name of the Grand Portage Band of the Minnesota Chippewa (the Band) petitioned in intervention,3 and on May 30, 2000, it asserted that the ICWA required that the Minor be placed for adoption with a Tribe member on the Grand Portage Reservation in Minnesota. 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.

The Tribe is a federally recognized tribe for purposes of the ICWA. It has constituent reservations, which are not recognized by the Secretary of the Interior as Indian tribes. (63 Fed.Reg. 71941-01, Dec. 30, 1998.) The Grand Portage Reservation is one of the Tribe's reservations, and is located at the extreme northeastern corner of Minnesota, near that state's juncture with Michigan and the Canadian province of Ontario. Four hundred to 500 people live on the reservation, which is governed by the Grand Portage Reservation Tribal Council. The Tribe's headquarters is at Cass Lake, Minnesota, in North Central Minnesota.

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 Tribe's proposal that the Minor be removed from Appellants and placed with the member of the Tribe. 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 Grand Portage Band 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 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. As a separate and independent ground for reversal, we find the Tribe has waived its assertion of ICWA placement preferences.

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 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 court immediately queried the parents concerning tribal associations. The Mother informed the court that she was enrolled in the Tribe. The Father stated that he was of Navajo descent through a grandmother. On December 17, 1998, the Department served, by certified mail, a "Notice of Involuntary Child Custody Proceedings Involving Indian Child" to the Navajo Tribe of Arizona/New Mexico at Window Rock, Arizona, and to the "Minnesota Chippewa Tribe" at Cass Lake, Minnesota. For the February 5, 1999 hearing, the Department sent a similarly addressed notice by certified mail to the tribes.

2. Jurisdictional Hearing (January 13, 1999)

An amended dependency petition was filed January 13, 1999, adding uninhabitable home allegations to the allegations in the initial petition. The home was described as unsanitary, littered with trash and debris, foul smelling, and overrun with mice and rats. The allegations of the petition, as amended, were sustained, and the court entered jurisdictional orders. A dispositional hearing was set for February 5, 1999.

According to the Department's report to the court, the Father had related that he was not registered with the Navajo tribe and did not participate in any tribal customs. The Mother informed the Department that she was a member of the Tribe, but that she had lost any documents connecting her with the Tribe when her mother had died (17 years before).

3. Dispositional Hearing (February 5,1999)

At the February 5, 1999 dispositional hearing, the juvenile court maintained foster care placement, reunification services, and allowed the parents twice-weekly monitored visits. The court set a non-appearance progress report hearing for May 17, 1999, and calendared a "Permanent Plan Hearing" for August 6,1999.

The Department reported that the Tribe had...

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